My childrens photos being distributed by a store and web site.

Webmaster refuses to honor a cease and desist

[vrtlw]

For christmas, I received as a gift a box of greetings cards from a customer. I was shocked when opening the box of cards that my children's photographs were used on a number of the cards (full face portraits - taken at a public event). On the back of the cards was a web site address which I surfed to and found the pictures were available online.

I spoke with the person that had given me the gift and they told me they had seen them in a store and had purchased a few boxes as gifts although she could not accurately recall where they were bought (this may have been a cover-up).

I composed a cease and desist letter which as yet has not been acted upon, the images are still being used and distributed from the web site.

I have researched and found many contradictary reports regarding parental consent etc. and I seek information to make the decision if I need to go to the expenditure of legal representation or if there is any quality material that tells me my rights as a parent.

[pendanticist]

Public Event are the keywords here.

Last I heard, the big fuss over the newest picture snapping cell phones dealt with our increasing lack of privacy, or expectations of, because of their increased availability and subsequent use.

While this may not be the case in your own country, but I'm afraid that pictures taken at public venues are just that....public.

[Visit Thailand]

Personally I would try again but get a lawyer to draft a new more threatening letter.

Children need to be protected on the net so I am sure that alone could help but I am not a lawyer and this is just my humble opinion.

[rogerd]

I agree - if this situation worries you it's time to involve an attorney. In the US, photos used for commercial purposes normally require a model release. In the case of a minor, the parent must sign.

Like most areas of the law, there are gray areas. But if the child's image is prominently and recognizably featured on a greeting card, that sounds fairly clear cut to me.

[pendanticist]

While I agree the protection of children is important, it is equally important to understand the poster did NOT say they were children, but that they were the poster's children.

We do not know them to be minor children at this point.

[rogerd]

Picky, picky... ;)

Even if vrtlw's children aren't minors, the photographer would still need a model release to use their photo on greeting cards. One would assume that had vrtlw's adult children scored a modeling gig for a greeting card publisher, they might have mentioned this to vrtlw... but one shouldn't assume... :)

[bird]

Public Event are the keywords here.

That may be the case with pictures of a crowd, where it just happens to be possible to visually identify some of the participants. But I don't think that the location and event is relevant for pictures that single out individual faces in portrait format. In such a case, the personality rights of the subjects will take precedence.

There's also a difference between pictures in a report about an event (less protection for the individual), and pictures that are used independently of the event for other commercial purposes (model release necessary).

[engine]

You'll find some information about COPPA, Children's Online Privacy Protection [ftc.gov] and it describes how to comply. The FTC provides the Kidz Privacy [ftc.gov] site detailing more information. In addition, there's a helpline there.

[jomaxx]

If it's really a picture "of" the child, I don't think there's any question that you can prevent them from selling it as a greeting card. An adult would have the same right.

However the more people who are in the picture, the more the situation might get into a grey area, ethically and legally.

[yogis]

Only an authorized model face can be used for marketing purpose. Unless if it gets noticed.....

SO u can consult a lawyer if you are really pissed of. After all you got to settle scores in this world only

[mquarles]

With COPPA you can probably get them into DEEP trouble with someone else paying the bills. If you can get movement by the powers that be.

MQ

[rogerd]

Vrtlw, are there any circumstances that could affect this situation that weren't in your post? From your post, it sounds as if that the photos are full face shots, recognizable, being used for commercial purposes, and no model release was signed. It's easy enough to imagine a photographer "forgetting" to get a model release on the assumption that nobody would ever notice, but it's hard to understand why he/she would stonewall you after being caught red-handed.

[pendanticist]

Picky as it may seem, <chuckle> without detailed specifics, we're doing the poster no good by speculating.

Afterall, this thread is the poster's last post to the boards.

[photocartoonist]

"but I'm afraid that pictures taken at public venues are just that....public."

Not if they are used for commercial purposes. The law in question is the right to publicity. Although the right to privacy does not cover you if you are in public, outdoors, if you are in a building no matter how public the right to privacy does come into play and even a photojournalist will need permission to take pictures inside.

I am a professional photographer, a commercial photographer and my IP attorneys have always said "Get a release."

File a DMCA complaint with the sites hosting company, Google, their registrar and any advertiser they may have. If you have the resources, consult an IP attorney.

[vrtlw]

rogerd:

Vrtlw, are there any circumstances that could affect this situation that weren't in your post?

Not at all, in fact as an update to this thread the hosting provider of this 'company' closed them down after I copied all of my correspondence to them

pendanticist:

Afterall, this thread is the poster's last post to the boards.

?

[rogerd]

Well, vrtlw, it sounds like your efforts were successful in getting the pics removed from the web, even without the photographer's/card maker's cooperation. Good job. Now you have to keep your eyes open for the site popping back up with new hosting or even a new domain name.

You still have the issue of the cards themselves, unless the offending company finally got the message after having their site dumped. You'll probably have to go the lawyer route for that phase. Good luck!

P.S. I hope you bought a few boxes as "evidence" - once this mess is behind you they'll become family heirlooms... ;)