Image Right

Recently, I was faced with the fact that photos with my image were published on one of the photo banks, by itself without my consent. That is, a person not only published these photos without asking me for permission, he also decided to earn money on this. I must warn you right away: no sedition, ordinary ordinary photographs, but the question itself!

So. I will explain the possible steps in this case: crime and punishment, those interested, I ask under cat:

Legal framework instead of entry

Article 1257 GKRF Copyright Copyright
The author of a work of science, literature or art is a citizen whose creative work it is created. A person indicated as the author on the original or a copy of the work shall be considered its author, unless otherwise proved

A similar norm in the Civil Code of Ukraine

Article 435. Subjects of copyright

1. The primary subject of copyright is the author of the work. Due to the lack of evidence to the contrary, the author of a work is an individual who is indicated in the usual way as the author on the original or a copy of the work (presumption of authorship).

2. Subjects of copyright are also other individuals and legal entities that have acquired the rights to a work in accordance with a contract or law ..

It follows that if you created any graphic work: wrote a picture, took a photo - you automatically become its author.

Copyright itself implies the acquisition of a complex of property (i.e. you can use the work in any form and in any way that is not contrary to the law: reproduce, publicly display, distribute, etc.) and personal non-property rights (copyright, publication right )

And it is here that there is one catch:

If you photographed someone (hereinafter referred to as the model), then you will automatically be recognized as the author of this work (in this case, photographs). But here, your author’s right conflicts with the model’s right to image.

Section 152.1. Protection of the image of a citizen The
publication and further use of the image of a citizen (including his photograph, as well as videos or works of fine art in which he is depicted) are allowed only with the consent of this citizen ...

Such consent is not required in cases when:

1) the use of the image is carried out in the state, public or other public interests
2) the image of the citizen is obtained when shooting, which is carried out in places open for free visits, or at public events (meetings, congresses, conferences, concerts, shows, sporting events and the like events), except when such an image is the main object of use;
3) a citizen posed for a fee

A similar norm in the Civil Code of Ukraine

Article 308. Protection of the interests of an individual who is depicted in photographs and in other artistic works

1. Photography, other artistic works depicting an individual may be publicly displayed, reproduced, distributed only with the consent of that person, and in case of his death - with the consent of the persons determined by the fourth part of Article 303 of this Code.

The consent given by an individual depicted in a photograph or other work of art may be revoked after his death by the persons determined by part four of Article 303 of this Code. The expenses of the person who performed the public display, reproduction or distribution of the photograph, other artwork are reimbursed by these persons.

2. If an individual posed for the author for a fee, photograph, other artwork may be publicly displayed, reproduced or distributed without his consent.

An individual posed for the author of a photograph, another work of art for a fee, and after his death, his children and widow (widower), parents, brothers and sisters may demand the cessation of public display, reproduction or distribution of a photograph, other work of art, subject to compensation to the author or to another person related losses.

3. A photograph may be distributed without the permission of the individual who is depicted on it, if this is caused by the need to protect his interests or those of other persons.

So you took a photo, but the model did not give you your consent to publish. The consequences of this are:

• You cannot post this photo, because you have not received the consent of the depicted citizen
• The depicted citizen can not publish the photo taken by you, without your consent, as this will violate the copyright

And here is a dead end, a vicious circle. No one can use this photo.

To avoid such incidents, both the model and the photographer are interested in concluding a civil contract in which they transfer the necessary rights to each other. In Western practice, such a contract is called a “ release ”.

The release is one of the main elements necessary for working with Western and domestic photo banks, unless of course you photograph only the boogers.

So I found my photo on one of the photo banks, I don’t want it to disappear from there?

I found my photo, and even with a note: " with release "., I.e. this is the height of arrogance to declare that there is an agreement with me when it is not :)

As far as I understand, in fact the administration does not verify the veracity of releases until the first paragraph.

I tried to resolve this misunderstanding peacefully, just asking the user to remove my photo from the public. What was refused.

Well, I read the user agreement:

Unauthorized Use
Without limitation, Images may not be used as a trademark or service mark (unless the appropriate extended license is being used), for any pornographic or unlawful purpose, to defame a person, to violate a person's right to privacy or publicity, to infringe upon any copyright, trade name, trademark, or service mark of any person / entity

In short, from what we need, it sets out what is contained in the article of the Civil Code of the Russian Federation cited by me at the very beginning, only in a Western manner.

So, I wrote a clumsy English about the following content:

Hello!

My name is Sergey, I want to draw your attention, that% username% violates my right of publicity , with these photos: (listing)

The person on this photos is me, and i had never given any rights to anyone to public these photos , including this user. I want them being removed from your service .

Thanx in advance

Hello!

My name is such and such and I want you to pay attention to the violation of% username% of my right to an image, namely: (listing of photos)

To which I received an answer literally within 8 hours (in the states it was night at the time I wrote the first email)

Hello,

Thank you for contacting% companyname% and for calling this matter to our attention.

We take such reports seriously and we have investigated the image and model release in question. The photographer has provided us with a valid model releases that appears to be listed on a different name. In order for us to proceed with the investigation, please provide additional proof that the person in these images is you .

Thank you for contacting us and drawing our attention to this issue.

We take these messages seriously. And we put the veracity of the “release” of the model into question. The photographer provided us with an allegedly truthful release, which, as it turns out, was issued in a different name. If you would like us to continue the investigation, please send any document confirming that the person depicted in the photo is you.

In response to that, I sent a copy of my passport . Their answer:

Hello Sergey,

Thank you for the addition proof provided.
We have taken the appropriate measures for this account. The files in
question are no longer listed for sale in our database .
Again, we appreciate you bringing this matter to our attention.

Thank you for verifying your identity.
We have taken the necessary measures regarding this account. The files you challenged are no longer in our database .

We thank you for your appeal.

As a result

As a conclusion: the photos were deleted by the administration, the pest account was blocked, apparently until clarification, and there are suspicions that the money accumulated in an unjust way was not returned to him, because

Unauthorized use of these Images constitutes copyright infringement and shall be entitle% companyname% to exercise all rights and remedies under applicable copyright law, including an injunction preventing further use and monetary damages against all users and beneficiaries of the use of such Images . The foregoing is not a limiting statement of% companyname% 's rights or remedies in connection with any unauthorized use.

Know your rights, comrades, even in such a petty matter! Since knowledge, a few extra gestures and a little patience do justice! :)

UPD1: Added a very free translation of correspondence