Discussion:
What is the name of your state? Georgia.
This is a little different, I think. I have a cute little dog. At an arts and crafts festival last fall, one of the local artists saw my dog and took her picture without my knowledge. That's fine.
Several weeks ago, that artist told me she had painted my dog. She said her young daughter fell in love with the picture of my dog and she thought Midgie would make a good subject/study.That's fine, too, since I thought she would be either giving the painting to her daughter or to me or hanging it in her home.
Two weeks ago, the local artists guild held their spring art show. There was her painting of my dog in the show with a $125 price tag on it!
Today, I come back from lunch to find she had left me a 4" x 6" greeting card with the painting of my dog printed on it. Clearly, she plans to sell not only the painting, but to further profit from my dog by selling greeting cards with her portrait on them.
When my dog was younger, a pet photographer saw her with me in a pet store and offered to take her photograph/portrait, which I paid for. He later asked me if he could use her photo in his sales brochure, which I allowed him to do. He also had me sign a waiver.
Shouldn't this artist have done the same thing? I feel like she's profiting off of my property without even asking me. It's my dog and she never even asked! I'm furious.
Answer:
What is the name of your state? Georgia.
This is a little different, I think. I have a cute little dog. At an arts and crafts festival last fall, one of the local artists saw my dog and took her picture without my knowledge. That's fine.
Several weeks ago, that artist told me she had painted my dog. She said her young daughter fell in love with the picture of my dog and she thought Midgie would make a good subject/study.That's fine, too, since I thought she would be either giving the painting to her daughter or to me or hanging it in her home.
Two weeks ago, the local artists guild held their spring art show. There was her painting of my dog in the show with a $125 price tag on it!
Today, I come back from lunch to find she had left me a 4" x 6" greeting card with the painting of my dog printed on it. Clearly, she plans to sell not only the painting, but to further profit from my dog by selling greeting cards with her portrait on them.
When my dog was younger, a pet photographer saw her with me in a pet store and offered to take her photograph/portrait, which I paid for. He later asked me if he could use her photo in his sales brochure, which I allowed him to do. He also had me sign a waiver.
Shouldn't this artist have done the same thing? I feel like she's profiting off of my property without even asking me. It's my dog and she never even asked! I'm furious. Well, there's a couple of issues here to think about -- you are not going to like the answers, I might as well tell you that up front...
1. Your dog is property, that's it. You might treat it like a member of the family, it might think it's a member of the family, but legally, it's just a piece of property. Because of this, the dog has no "right to privacy" -- it is these privacy rights that keep someone from being able to take YOUR picture and then use it for comercial gain (at least, in some circumstances). But your dog has no more of a right to privacy than does your car, or your hot water heater.
Now, before you go and say I am heartless, I have a couple of dogs myself, and yes, they are part of the family. But that doesn't change their LEGAL status as property.
2. Even if the dog DID have a right to privacy (and it doesn't), the picture was taken in a public place, and you simply don't have an "expectation of privacy" when you are out in public. I could take a picture of you out in public and then sell that picture for commercial gain -- as long as I didn't sell it or advertise it in such a way that it would appear that you were approving of or endorsing my services or products, I could sell the picture I took of you and there really isn't any way for you to stop the sale. That's how all of those "Girls Gone Wild" videos can be sold -- as long as they are shot in a public place...
3. The fact that the pet photographer had you sign a release is based on a couple of things, namely that a) he was taking the picture in what was arguably NOT a public place, and b) he wanted to use the picture in advertising. But most importantly, in c) he wanted to avoid what is now the current situation, by making you aware of what he intended to do with the picture. But the FACT is, none of that was necessary -- the dog does NOT have a right to privacy to protect, so he probably didn't NEED to have you sign the form anyway -- he probably just does it because it helps to avoid problems down the line.
So, while you may be angry at this person -- certainly what he did wasn't nice, it certainly would have been polite to ask permission to take and use the picture -- from a legal standpoint, there isn't anything you can do about it. If it had been YOUR picture that he was using, then you might have copyright law to fall back on. But in this case, a picture of your property taken in a public place, there simply isn't anything you can do about it via the legal system.
Maybe you should contact him and try and discuss things?
Answer:
Thank you for responding. I agree my dog is "property" in the legal sense (and a member of my family as you say) and I guess that was my point. If she is MY property and I HAVE a right to privacy, doesn't that privacy right also encompass what I own or my "property?"
Shouldn't I also have a right to keep my property private, as it were?
And because it IS my property, have the ultimate decision as to what others choose to do with it? Whether in public or in private? If not, what is the point of having ownership of anything if anyone can do what they like with and profit off of what rightfully belongs to me without my permission? They can't drive my car or use my cell phone to make a profit or just to use without my permission and those are seen in public all the time. They can't use any property of mine to make a profit without my permission. If they do, it's called stealing. My dog and her image belong to me. I feel that she is using my dog or my dog's image without my permission.
Maybe my dog doesn't have rights, but her owner does. I have the right to say how my property is used and whether my property is used for someone else's personal gain or not, whether that personal property is seen in public or not.
It seems to me that to say that what objects "belong" to me are not governed in their use by me, the owner, because they are property and have no rights, makes no sense. If someone cannot use my ideas or words as their own to profit from, why can they use some object I own? I own the words, I own the objects, what's the difference? Words in and of themselves don't have rights. But they're my words and I have rights. I don't see the difference.
I don't agree with the argument that I was in a public place as grounds that my dog, my property, is fair game for anyone to use to profit from. If I show my script for a movie or my plans for an invention to friends in a public place, is that fair game, too? That's intellectual property. I own those.
No it wasn't nice, but I don't think it's legal either.
Answer:
Thank you for responding. I agree my dog is "property" in the legal sense (and a member of my family as you say) and I guess that was my point. If she is MY property and I HAVE a right to privacy, doesn't that privacy right also encompass what I own or my "property?" No. Property doesn't have an independent right of privacy.
Shouldn't I also have a right to keep my property private, as it were? To a certain extent, yes.
And because it IS my property, have the ultimate decision as to what others choose to do with it? Yep.
Whether in public or in private? Sure.
If not, what is the point of having ownership of anything if anyone can do what they like with and profit off of what rightfully belongs to me without my permission? They can't drive my car or use my cell phone to make a profit or just to use without my permission and those are seen in public all the time. Here's where you go off track. You are correct in that someone else cannot "use" your property without your permission -- ownership over property gives you a right to "exclude" others. But if you take your property out in public, you can't prevent it from being seen by others. Anyone else can "see" your property. They can also sketch it, or take a photograph of it. When you are out in public, you cannot keep other people from looking at you, or photographing you, or noting that you are in public or where you went -- because once you are in public, you have no expectation of privacy.
They can't use any property of mine to make a profit without my permission. If they do, it's called stealing. I agree.
My dog and her image belong to me. That's not correct. You do not own your dogs image -- you don't even own your OWN image, at least to some extent. As Inoted before, if you are out in public, I could take your picture, make a thousand copies of that picture, and sell it on the Internet, and I would be doing NOTHING illegal, as long as I dind't use your likeness in such a way that it constituted endorsement, agreement with, or other relationship with a product or service.
Think about it -- do you think someone who takes a picture of a crowd scene gets permission from each and every person in the scene? Of course not -- when you are out in public, in plain view, what can be seen or photographed by another is NOT something you have any control over.
And, as I noted previously, your dog -- being property, and having no inherent right to privacy that you enjoy -- has even less protections.
I feel that she is using my dog or my dog's image without my permission. You may feel that way, but LEGALLY she is not obligated to seek permission to use the photograph that SHE took of your dog.
Maybe my dog doesn't have rights, but her owner does. I have the right to say how my property is used and whether my property is used for someone else's personal gain or not, whether that personal property is seen in public or not. The proble with this argument is, however, that nobody IS using your property. The picture is certainly not your property -- you didn't take it. It belongs to her. And whatever your personal feelings about the subject may be, it doesn't change the fact that LEGALLY she is not obligated to you in any way. Morally, maybe, but this is a LEGAL advice board, not a moral one.
It seems to me that to say that what objects "belong" to me are not governed in their use by me, the owner, because they are property and have no rights, makes no sense. But you do have total control over your property. What you don't have control over is a photograph that belongs to another -- that is NOT your property.
If someone cannot use my ideas or words as their own to profit from, why can they use some object I own? But you don't own your words or ideas either. You may be able to copyright your words if you write them down or otherwise record them, but words spoken are NOT protectable. And ideas are NEVER protectable. Ideas that become inventions might be protectable by a patent, and expressions of ideas might be protected by copyright, but ideas themselves may only be protected by keeping them secret.
I own the words, I own the objects, what's the difference? Words in and of themselves don't have rights. But they're my words and I have rights. I don't see the difference. See above. Your ideas of ownership and what you own are far more expansive than the law allows for.
I don't agree with the argument that I was in a public place as grounds that my dog, my property, is fair game for anyone to use to profit from. Your dog ISN'T fair game to profit from -- the person is profiting from a photograph that SHE took that belongs to HER. Would you be just as upset if she took a picture of your car while it was parked on a public street? What about your house? Do you feel you have the right to control that as well?
If I show my script for a movie or my plans for an invention to friends in a public place, is that fair game, too? That's intellectual property. I own those. Of course not. But we are not talking about patents and copyrights here.
Look, the world you are describing is simply a world that doesn't exist. You can photograph or draw something that is visible from a public location, and you don't have to ask permission, that's just the way the law works. When you travel, do you have to ask permission every time you take a picture of a building? Of course not.
In any event, not to be harsh, but the fact is, it simply doesn't matter in this case what you "believe." The law is very clear that photographing things from a public vantage point simply does not require any special permission. Anyone can go to Bourbon Street in New Orleans, photograph women on the street flashing their boobies, and sell those picutres on the Internet or anywhere else. The Girls Gone Wild folks can videotape the same thing, and sell the videotapes. The law is very clear -- if it happens in public, you really can't control it. If you don't want pictures getting out, stay at home.
Answer:
Ok, I understand now. I was overlooking the fact that the photograph belongs to her.
Thank you for your patience and the logical and practical way you explained everything point by point. I appreciate it very much. You've been very helpful.
Even though there are no legal recourses, I still don't like it...sigh. But you're right, that's the real world and I can't spend the rest of my life living in a cave. Guess I'll just feel flattered she chose my dog to paint and move on.
Thanks again,
MJ