Francisco Castro wrote:
Sorry I had to take my photos down....

The photographer that took them would not let me post them
with out paying him more money.
He gave me the disk to make personal prints only,
not to advertise.... He says!

Without knowing the legalities, if I were that model, I would not pay the photographer any more money. I would lick my wounds and find another photographer ASAP.

Mark Salo wrote:

Without knowing the legalities, if I were that model, I would not pay the photographer any more money. I would lick my wounds and find another photographer ASAP.

Agreed. Hiring another photographer would be her best course of action. However, that doesn't answer the question. Can she in fact, use the photos for her profile or social media since she paid for the session. Because if she commissioned the work there are e-mails to prove that she commissioned then, then it would satisfy the requirement that:

" to qualify, a commissioned work must be specified as a work made for hire, either in a contract or other writing, and the work must fit within one of the following categories: (i) a contribution to a collective work, (ii) a part of a motion picture, (iii) a translation, (iv) a supplementary work, (v) a compilation, (vi) an instructional text, (vii) a text, (viii) answer material for a test, or (ix) an atlas."

JT Life Photography wrote:
Without seeing the contract I don't think one can safely assume anything.

In general, copyright remains with the photographer - anything else should be detailed in the contract.

This lady does seem to be having a lot of bad luck: A Google search of her words shows her account, that her father has cancer, and, she is away from her home base. 

However, it seems odd to me that she is unable to post any pictures at all, even 'selfies' so her account has zero images. MM seems full of models' 'selfies' these days.

JT

Her posting other photos that she can get from another photographer or her own cellphone is not at issue. We're discussing the photos already taken, and whether or not she is entitled to their use.

Agreed. that unless specified in the the contract, the photographer maintains the copyright. However, there is an exception if the work is a COMMISSIONED WORK, if it fits certain criteria (outlined above in a previous post). In that case copyright is shared and the model has the right to use the images as she sees fit. She can't sell them, but using them for her portfolio is well within those rights.

Francisco Castro wrote:
So, ASSUMING there was no contract, can she in fact, use the photos for MM or social media. or because she did pay for the session, the work be construed as the product of a work-for-hire situation? Does his copyright claim hold up against a work-for-hire claim?

If there's no contract the default would be the standard photographer's copyright.

Work for Hire almost always requires some sort of contract as proof that the photographer was working on behalf of someone else.  While it's somewhat possible for a model to have a photographer work for hire, it's not really common.  I've never seen it.

Work for hire is usually used in companies.  The photographer(s) at the almost extinct Glamour Shots photo studio chain, and a cinematographer for a feature film would always be 'work for hire'.  The company that hired them own the rights to the photos and all the shooter gets is a paycheck and a 'thank you'.

----------------------
The only other instance where the model may actually be the copyright holder without having any contract is with copyright laws in some other countries, but I think even they all changed within the last decade or two to be more like the USA copyright laws.

For instance, in Canada a person that gave valuable consideration (something of value) in exchange for photographs would be the copyright owner, so a model that paid would be the copyright owner, however that law changed at least 15 years ago so it's probably hard to find any cases such as that anymore.

Francisco Castro wrote:
So, ASSUMING there was no contract, can she in fact, use the photos for MM or social media. or because she did pay for the session, the work be construed as the product of a work-for-hire situation? Does his copyright claim hold up against a work-for-hire claim?

While it is likely that images from a controlling photographer like that are not worth bothering with, it is possible that she can display images on her social media, agency website as examples of her past work or experience. I would point to virtually any model agency website which displays tearsheet on their website. I would wager that none get prior copyright release on any image they display.

Could she re-sell the images for third party advertising or put the images behind a pay-wall? No, but I would be surprised to see a court siding with the photographer in this case for non-revenue display. But then again, I'm not a lawyer, thank goodness.

Dan Howell wrote:
While it is likely that images from a controlling photographer like that are not worth bothering with, it is possible that she can display images on her social media, agency website as examples of her past work or experience. I would point to virtually any model agency website which displays tearsheet on their website. I would wager that none get prior copyright release on any image they display.

Could she re-sell the images for third party advertising or put the images behind a pay-wall? No, but I would be surprised to see a court siding with the photographer in this case for non-revenue display. But then again, I'm not a lawyer, thank goodness.

I love seeing your agency perspective, its always interesting that its tangentially related to the general industry, but so irrelevant to anything that actually happens on websites like this.

Couldn't we just use the process of deduction and assume it was an independent photographer and independent model and none of them were emulating the parallel agency industry? There are practices between individuals that have cameras, and people that pose for them, that have evolved differently and predictably, than the practices that agencies use.

If the agency practices are better, we should talk more about what the accepted experience and culture is like. Maybe in the MM education section.

Francisco Castro wrote:

Her posting other photos that she can get from another photographer or her own cellphone is not at issue. We're discussing the photos already taken, and whether or not she is entitled to their use.

Without seeing the written agreement between the photographer and model, anything that we say here is pure conjecture.  If there was NO written agreement between them, the model cannot act as if she does have a usage license.

At this point, her best bet would be to post some selfies (even though site rules officially prohibit them) to at least show what she looks like until she can shoot with a different photographer with more reasonable terms.

Francisco Castro wrote:
[snip]

So, ASSUMING there was no contract, can she in fact, use the photos for MM or social media. or because she did pay for the session, the work be construed as the product of a work-for-hire situation?

Not of legal mind but would tend to agree here.

Emeritus wrote:
Absent some written agreement to the contrary, which seems not to be present, the model can use the pictures for the purposes she intended when they did the shoot.  She has an "implied usage license" for those limited purposes.  That doesn't mean she can do any old thing at all wih them - allowing them tdo be used on cans of soup would be outside the limited scope of her license.  But photographers are wrong to think that they have absolute control over the use of the images.

What Dan Howell refers to as agency/industry standard practices are not some special carve-out in the law that only applies to them.  It is consistent with copyright law generally that applies to everyone, including "independent" photographers and models.

I've written about this for a long time.

http://www.newmodels.com/Usage.html

Sums up what I was going to say but it does depend on what her intended use was.
If it was a portrait session prior to any interest in modeling then it might not apply.
I would assume the photographer is a relatively new one on a copyright ego trip and not a customer focused business person

Bob Helm Photography wrote:
Sums up what I was going to say but it does depend on what her intended use was.
If it was a portrait session prior to any interest in modeling then it might not apply.
I would assume the photographer is a relatively new one on a copyright ego trip and not a customer focused business person

I completely agree.

Emeritus wrote:
Absent some written agreement to the contrary, which seems not to be present, the model can use the pictures for the purposes she intended when they did the shoot.  She has an "implied usage license" for those limited purposes.  That doesn't mean she can do any old thing at all wih them - allowing them to be used on cans of soup would be outside the limited scope of her license.  But photographers are wrong to think that they have absolute control over the use of the images.

What Dan Howell refers to as agency/industry standard practices are not some special carve-out in the law that only applies to them.  It is consistent with copyright law generally that applies to everyone, including "independent" photographers and models.

I've written about this for a long time.

http://www.newmodels.com/Usage.html

I think its odd to assume the photographer didn't specify have stipulations in writing. But maybe thats just me living in my own world, but my world has been validated by most of the models I encounter not finding issue with my contracts. With only some of them asking what I'll use the pictures for, and even then its more like smalltalk than a discussion.

Bob Helm Photography wrote:
Sums up what I was going to say but it does depend on what her intended use was.
If it was a portrait session prior to any interest in modeling then it might not apply.
I would assume the photographer is a relatively new one on a copyright ego trip and not a customer focused business person

I wouldn't make that assumption. Although if there was a failure to communicate in advance then yeah, I would make that assumption. I just don't have enough information.

The model acted one way, was contacted, took them down, left a note for others about why.

I can't assume:

A) no contract

B) uncharacteristically controlling photographer

sorry, I just can't assume these things

All Yours Photography wrote:
If there was NO written agreement between them, the model cannot act as if she does have a usage license.

Not necessarily true.

There is indeed the legal concept of "implied license", and it has been applied to photography before in a similar situation where a photographer and a model shot TFP and the photographer tried to compel the model to remove the photos under a copyright claim.   The case went to court, and the model won, because the judge determined that the only consideration the model gained from the arrangement was the license to use the photos for self-promotion - why else, the judge reasoned, would she pose for a perfect stranger if only the photographer was to benefit? 

As with many areas of the law, "never say never".

C.C. Holdings  wrote:

I wouldn't make that assumption. Although if there was a failure to communicate in advance then yeah, I would make that assumption. I just don't have enough information.

The model acted one way, was contacted, took them down, left a note for others about why.

I can't assume:

A) no contract

B) uncharacteristically controlling photographer

sorry, I just can't assume these things

The OP set it out quite reasonably, I think, and did make at least the first assumption, and said why:

Francisco Castro wrote:
Assuming that there is no contract, and assuming there was no release, and noting that the words, "with out paying him more money", it can be assumed that she paid for session. I assume there was no contract because I would find it hard to imagine that a model would knowingly hire someone who limited her use of the photos to "make personal prints only" in this age of social media.

To assume that there was a contract so restrictive and agreed to  by the model before the shoot strains credibility.  After the fact, when she had posted the pictures, "he said" he didn't intend to allow that.  Not "he pointed out that the contract said".  Occams razor applies. There is no evidence of a contract, and no reason to accuse the model of knowing of such a provision in advance of the shoot, agreeing to it, and then violating it. 

He cannot change an implied license after the fact. 

If he is, in making that demand, NOT an "uncharacteristically controlling photographer" then we would have to believe that photographers are, in fact, characteristically that controlling.  It's an assumption I am not willing to make about my colleagues in this industry, and there isn't a lot of evidence that most are this way.  That is, his behavior does seem "uncharacteristic".  I can't find any rationale for not so concluding.

All of which seems to make Bob's asumption rather reasonable.  YMMV, of course.

C.C. Holdings  wrote:
I think its odd to assume the photographer didn't specify have stipulations in writing. But maybe thats just me living in my own world, but my world has been validated by most of the models I encounter not finding issue with my contracts. With only some of them asking what I'll use the pictures for, and even then its more like smalltalk than a discussion.

I suppose all of us tend to view the practices of the industry through the lens of our own experience.  Mine is quite different from yours.  I have no "contract" other than a simple model release which outlines how I can use the pictures.  Nothing else.  If a model asks for a written usage license I am happy to provide one, but such requests have heen made, oh, once a decade or so.  So in my world (and that of many other photographers I know) it is quite common, even customary, for photographers not to put usage stipulations in writing.