A girl messaged me on Instagram to take boudoir pictures of her at her house. I went to her house, took her pictures. I went home, edited, and sent them. She said she loved them, but she asked me not post the sexy ones because her boyfriend found out about the pictures and wasn't happy about it. I told her I would not post them immediately because I never do anyway, and when I post I will not tag her.

A few months pass by, and I post one of the pictures, and it seemed fine. But it had a nip slip which I didn't notice until she flooded my inbox asking me to take it down. Now both her and her roommate are spamming me saying I don't own copyrights to the images since I never paid for the shooting, which was never agreed to have any sort of payment on either end. So do I own the copyrights of the picture, and can I post it?

I am located in Florida.

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    Did you have a contract signed first? What does it say, if anything, regarding rights to the photos? Also, "I don't own copyrights to the images since I never paid for the shooting." She's saying you the photographer don't own the rights because you didn't pay them? What would that have to do with anything. Broadly speaking, you own copyright on photos you take barring any contractual or other agreements. – BruceWayne Sep 20 at 18:52
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    Was she a client or was this TFP? – Robin Sep 21 at 19:13
up vote 126 down vote accepted

So do I own the copyrights of the picture and can I post it ?

You definitely own the copyright but you may not have the right to publicly display the image. Most photographers get a model release as a CYA, and it sounds like you don't have one. Given the sexually explicit nature of the photographs, your image may also be subject to revenge-porn laws in your area.

my Instagram is explicit photos of girls, she knew that once she asked me to take the pictures. she knew where they would go. she only changed her mind after her boyfriend got upset.

This is an ABSOLUTELY TERRIBLE UNETHICAL PERSPECTIVE TO TAKE.

As a boudoir photographer, people are posing for you in their most vulnerable state. You need to give this, and them, the utmost respect. If the client asks you to never post an image, then don't. If they initially agree, and then change their mind, then take the image down.

Not respecting this will quickly lead to you losing your reputation in a business where reputation matters more than almost everything.

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    @Davor The question makes it pretty clear she's a client. – DJClayworth Sep 21 at 16:15
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    @DJClayworth I disagree. I was wondering if this was TFP or a client myself. – Robin Sep 21 at 19:15
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    @Davor that's neither here nor there. OP doesn't appear to have a model release so he has no inherent right to publish the image anywhere. If OP wants to be a prpfessional, then that means doing things the right way, and in this case, respecting the request. – Hueco Sep 21 at 20:39
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    @ttbek I mention the model release because it appears that OP uses his IG to promote his photography business, making the posting of the image commercial. It also depicts OP's lack of professionalism. If the client is in fact a model, this would be SOP and would protect OP. I still think it's unethical to keep the image up regardless of if she would have had a release, but OP would have more legal standing. That being said, I believe the girl to be a client, not a model, and as such, no client image should ever be posted publicly without a specific, signed release and should also be taken – Hueco Sep 24 at 16:07
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    down upon request. This issue is more about ethics than legality. I mention the release strictly as a point to show that OP has no legal standing anyway and to point at his unprofessionalism. Honestly, this post gives me the heebie-jeebies and makes me think OP is a creepy GWC photo.stackexchange.com/questions/99504/… – Hueco Sep 24 at 16:08

The following is for entertainment purposes only. If you have a serious legal concern, contact a lawyer.

  • Having the "right" to do something, doesn't mean you have to do it. It was a jerk move for you to post intimate photos despite having been specifically asked not to.

  • Copyright and Rights of Publicity are separate issues. (This appears equivalent to the French "le droit à l'image" that jcaron mentions.)

  • You should consider whether Revenge Porn Laws apply, which Hueco mentions. According to Kelly/Warner: U.S. Revenge Porn Laws: 50 State Guide:

    In Florida, unauthorized distribution of scandalous photos now comes with a possible jail sentence and $1,000 first-offenders fine (which increases for recidivist violators).

  • You may have violated Instagram's Terms of Use and Community Guidelines by posting "explicit photos of girls" (as jcaron mentions). Here is an excerpt from Instagram, though there may be other relevant portions:

    We know that there are times when people might want to share nude images that are artistic or creative in nature, but for a variety of reasons, we don’t allow nudity on Instagram... It also includes some photos of female nipples...

    We have zero tolerance when it comes to sharing sexual content involving minors or threatening to post intimate images of others.

  • People have the right to withdraw permission or consent. Though the specific process and requirements may vary, it is usually good practice to document and honor verbal requests. (In some situations, unwitnessed verbal withdrawal of consent is legally binding.)

Legally, can you? Probably, yes. By default, copyright belongs to the photographer and you don't seem to have any sort of contract which assigns the copyright to anyone else.

However... I'd strongly say that posting explicit photos of someone who has very clearly asked you not to post them makes you a bad sort. Consider why you're doing this and if that's the sort of person you want to be.

  • my Instagram is explicit photos of girls, she knew that once she asked me to take the pictures. she knew where they would go. she only changed her mind after her boyfriend got upset. – neal Sep 20 at 17:42
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    @neal She still changed her mind. Take it down please; you risk ruining that friendship, if the bridge hasn't already been burned, and the longer something's up... And you no longer have the rights to completely take it down from the web – wizzwizz4 Sep 20 at 20:14
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    Given the other answers, it seems like there might be some legal troubles as well. You might want to edit the first paragraph by either changing it from "Probably, yes" to "I'm not sure" or "Probably not", or address the legal aspects raised in the other answers. – NotThatGuy Sep 24 at 12:09
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    @neal You are still doing something which is making another person actively upset and vulnerable. Your defense is uncomfortably close to the mindset that if someone comes home with you, they can't change their mind about what happens next because they "knew where [the night] would go." People always have a right to change their minds, and you have a responsibility to respect that. – Lord Farquaad Sep 25 at 15:52

Don't know about the US in general and Florida specially, but in many jurisdictions, there are several different rights possible attached to a photo, including:

  • Copyright, which you hold if you are the one who took the pictures (including setting up, decor, lighting, asking for specific poses, make up and styling...), not as a salaried job, and you don't have a contract saying otherwise.

  • Copyright on any of the objects included in the picture. Believe it or not, you cannot take a picture of the Eiffel Tower at night and publish it without authorisation, as even though the copyright on the Eiffel Tower has long lapsed, the new lighting is covered by copyright. The same applies to photos of many buildings, though this is subject to debate and varies from one jurisdiction to another.

  • The rights of all the people included in the picture. In France we call it "le droit à l'image" (the right to your image). In most jurisdictions, you cannot publish a picture of someone (or including someone) without their consent, other than in specific circumstances (e.g. politicians at public events, people in a crowd when you can't actually recognise them). When you hire someone to take pictures of them (a model), you should include in the contract that they give you the rights to use their image. If you don't have a written authorisation, you don't have the right to publish the picture.

Haven't checked, by I'm pretty sure that the Instagram T&Cs you accepted must include language against publishing pictures of people without their consent.

So, in short, you probably hold copyright, but that doesn't mean you have the right to publish the picture. Take it down right away. If you don't, they may flag the picture to Instagram, and they can take it down, or take the whole account down.

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    For what it's worth, in the US I don't think we have anything quite like "le droit à l'image". The default situation here seems to be that anyone or anything in public can be freely photographed, and those photographs can be published without the consent of the people appearing in them - although I'm sure there are some exceptions. Of course, "public" doesn't really apply to this question, but I just wanted to point out the different attitude toward the rights of people appearing in photos in the US vs France. – David Z Sep 21 at 2:44
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    Same situation in Germany: The photographer holds the copy-right while the (single) person in the picture has a right of publicity. This protects both sides: The subject cannot make and distribute copies of the image w/o the photographer's consent (who normally will charge for additional copies, or charge even more for a digital version), while the photographer cannot use the portrait for advertising or anything else w/o consent of the subject. – JimmyB Sep 21 at 10:26
  • @DavidZ In the US (and Canada), generally image rights only apply to images being used for commercial purposes. You can't just take photos of random people and use them in ads or sell them, but you can generally publish those same photos for free (on instagram or facebook or whatever). – mbrig Sep 24 at 17:18

Unless you have an explicit agreement, you own the copyright to the pictures.

But note that in many places a verbal agreement is just as binding as a written one. So if she asked you not to post the pictures before the shoot, you cannot do it.

In general, unless you plan to take the pictures, get some money and let the client do whatever with them but never do anything yourself, you should get a modeling contract. There are plenty of examples online and even apps for doing it.

A modeling contract is basically a written agreement that says what to do and not to do.

From a practical perspective, you gain very little by letting the pictures stay online. But you will loose a lot when words get out, that you insists on keeping them up.

It is very obvious that she is not a model. She is just a girl that wanted some pictures. Perhaps she didn't think it though: Don't be hard on her.

You, as the photographer, is the professional part (even if you don't get any money) so you is responsible for taking care of your models. Delete the pictures, say sorry and let it go. Some times a job just goes bad, i.e. like here where you got the shots but cannot use them. But handled correctly you would have gained some credability and she might have referred others to you.

Setting aside the moral and ethical considerations of using the photos for a purpose with which the sitter did not agree - Everyone is discussing copyright as if all copyrights are the same. There is a gulf between commercial and editorial copyright. When I publish a news item, I can use photos of people taken at an event without specific permissions, but to sell that image as commercial stock, I wade into heavy waters - Shutterstock has a clear take on how to avoid getting it (or its photographers) sued https://www.shutterstock.com/contributorsupport/articles/kbat02/What-is-the-difference-between-Commercial-and-Editorial-content?l=en_US&fs=RelatedArticle Instagram is also pretty clear - it states "You can't post private or confidential information or do anything that violates someone else's rights" https://help.instagram.com/581066165581870 - This is particularly relevant when combined with this statement from elsewhere in their T&C - "when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it." In short - if you do not have the permission of the clearly identifiable subject of the photograph - you can be construed as violating their privacy rights - even where, as the photographer you own the copyright...

Without addressing the nature of the photos or whether you should have taken/posted them in the first place, I must point out that any time someone is the subject of a photo or video, they have the right to file a DMCA Takedown If for any reason they want the content removed.

DMCA Takedowns are pretty drastic courses of action, and if webmasters don't comply with them, ISP's have been known to cut service until the content is removed.

Respect people's wishes about images featuring them. You don't want to go through the official DMCA takedown process.

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    Please explain how the Digital Millennium Copyright Act applies here when it is clear the photography owns the copyright to the photos in question. – Philip Kendall Sep 21 at 16:28
  • @PhilipKendall. I did. Please read the linked article, especially the blurb "Note: although the DMCA is part of US Copyright law, a DMCA Takedown does not require the content to be copyrighted..." – NH. Sep 21 at 16:49
  • And also "Do not send a DMCA takedown notice if you consented or were compensated for the photo shoot." The subject consented here, no DMCA. – Philip Kendall Sep 21 at 17:04
  • @PhilipKendall They consented to having the photos taken, but not to having them posted - two different consents it seems to me. – Tony Suffolk 66 Sep 24 at 7:13
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    This is just not true. DMCA only applies to copyright, and in jurisdictions where the DMCA applies copyright of a photograph is assigned to the person behind the camera. The model has absolutely zero say or right to file a DMCA, and there are penalties in the law (though rarely enforced) for filing DMCA claims against material you don't own. – Joel Coehoorn Sep 24 at 20:08

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