is a Model release form required in France

[DrRusty]

A friend has noticed that a holiday company is using an image of his daughter taken by a professional whilst they were sking in France.

He does not recall giving permission for commercial use but did buy some images from the photographer. Does French law require a model release form for commercial use of an image?

 

[Photodiva]

I'd hazard a guess that it depends on whether its 'editiorial' use or 'commercial' i.e. used to advertise the holiday company (e.g. poster) or as part and parcel of the holiday brochure describing the resort etc.

 

[EdBray]

I'm pretty sure a model release wouldn't be needed here for that scenario either. Providing they are not misrepresenting the person shown there would be no need for a model release.

 

[DrRusty]

It is on their website.

Anyway thanks for the replys probably no need to take this any further now.

 

[POAH]

you'll need to check French law

 

[sixfootandstocky]

A signed consent form is normally required.

http://www.gralon.net/articles/commerce-et-societe/juridique/article-le-droit-a-l-image---que-dit-la-loi--2923.htm


En pratique

Si le sujet d’une photographie ou d’une vidéo est une personne, celle-ci possède le droit de s'opposer à l'utilisation de son image.

La législation distingue cependant deux cas de figure :
• si la personne est photographiée ou filmée de manière reconnaissable dans un lieu public ou privé, son autorisation est nécessaire avant toute diffusion publique quel que soit le support (dans la presse, dans un livre, sur une affiche ou un tract, sur un site Internet ou à la télévision)
• si le cliché ne permet pas de reconnaître la personne (notamment si elle est fondue dans la foule), son autorisation n’est pas nécessaire.

A noter : si vous participez à une manifestation publique et que vous êtes photographié dans le défilé, l’image pourra être publiée dans la presse sans votre consentement en vertu du droit à l’information.

Application du droit à l'image et sanctions

Avant toute diffusion d’une image représentant une personne, le diffuseur doit obtenir l'autorisation de la personne concernée. La personne doit donner son consentement express, c’est-à-dire qu’elle doit signifier son accord par écrit.

En ce qui concerne les images de mineurs, l’autorisation des deux parents est exigée.

A défaut, la personne dont l’image a été divulguée peut agir en justice et saisir le juge des référés. Ce dernier prendra toutes les mesures (séquestre, saisie et autres) propres à empêcher ou à faire cesser une atteinte à la vie privée

La sanction peut prendre la forme de dommages et intérêts. Par ailleurs, les contrevenants s’exposent à un an d’emprisonnement et 45.000 euros d’amende (selon l’article 226-1 du Code pénal) car la violation de ce droit est un délit pénal.

Les exceptions au droit à l'image

Il existe des exceptions concernant les personnalités publiques dans l'exercice de leur fonction (homme politique participant à un meeting, ministres à la sortie du Conseil des ministres ou célébrités montant les marches du Festival de Cannes par exemple…).

Une image prise dans le cadre de l’activité professionnelle ou publique de la personne peut être diffusée sans autorisation préalable si elle est utilisée à des fins d’actualité ou de travail historique et qu’elle ne porte pas atteinte à la dignité humaine.

En revanche, si la photographie a été prise dans le cadre de la vie privée (sur la plage pendant les vacances), une autorisation de publication est à nouveau indispensable.

 

[Starastin]

just leave it be I think !

 

[DemiLion]

Where is the website based, and just as importantly where was the photo uploaded from?

If the answer to either of those two questions is France, then the answer is yes, absolutely you have to have a signed release form.

Is she the main feature of the photograph?
Is the company one that she would avoid or never holiday with?
Could association with the company bring her into ridicule, contempt, be the subject of hatred, or be shunned or avoided?

If the answer to those questions is yes, then you have a fairly straight forward case for defamation in this country.

 

[DemiLion]

just leave it be I think !

Why?

 

[jon ryan]

Via Google Translate (which seems to have done a pretty decent job here):

In practice

If the subject of a photograph or video is a person, it has the right to object to the use of his image.

However, the legislation distinguishes two cases:
• if the person photographed or filmed in a recognizable manner in a public or private, permission is required before any public disclosure regardless of the support (in the press, in a book, a poster or a flyer on a site Internet or television)
• if the snapshot does not recognize the person (especially if it is melted into the crowd), consent is not required.

Note: If you participate in a public event and you are photographed in the parade, the image may be published in the press without your consent under Right to Information.

Application of image rights and sanctions

Before disseminating an image of a person, the broadcaster must obtain permission from the person concerned. The person must give their express consent, that is to say, it must make its written consent.

As for the images of minors, the consent of both parents is required.

Otherwise, the person whose image has been disclosed may sue and seize the judge. It will take all steps (sequestration, seizure, etc.) clean to prevent or stop an invasion of privacy

The penalty may take the form of damages. In addition, offenders face a year's imprisonment and a fine of 45,000 euros (according to Article 226-1 of the Penal Code) because the violation of this law is a criminal offense.

Exceptions to the right of publicity

There are exceptions for public figures in the exercise of their function (politician attending a meeting, ministers at the exit of the Council of Ministers or celebrities mounted the steps of the Cannes Festival, for example ...).

A picture taken in the context of professional or public person may be distributed without permission if it is used for current or historical work and does not violate human dignity.

However, if the photograph was taken in the context of private life (on the beach during the holidays), a model release is again essential.

****


In law, the French have far stricter privacy rights than in the UK - see here. But the chances are you'll be OK for basic snappery not intended for commercial use.

 

[Leadingimagery]

The big question that needs to be asked here is how old is his daughter. If she is over 18 and in a public place then no permission is needed. Under 18 is a different matter.

The photographer is allowd to use the images for their own personal advertising, however I would always reccomend asking permission first as the last thing you want to do is upset a customer as one unhappy customer is alot of bad feedback.

It all depends on if they want to take it further, aslong as it's not degrading her in anyway, i personally wouldn't be bothered about it. Just tell everyone that she's famous!!

 

[DemiLion]

The big question that needs to be asked here is how old is his daughter. If she is over 18 and in a public place then no permission is needed. Under 18 is a different matter.

The photographer is allowd to use the images for their own personal advertising, however I would always reccomend asking permission first as the last thing you want to do is upset a customer as one unhappy customer is alot of bad feedback.

It all depends on if they want to take it further, aslong as it's not degrading her in anyway, i personally wouldn't be bothered about it. Just tell everyone that she's famous!!

Age has absolutely nothing to do with the legal question.

You are also pretty much wrong about the second part as well:
HRA/ECHR Art 8; Right to a private life.

 

[sixfootandstocky]

The big question that needs to be asked here is how old is his daughter. If she is over 18 and in a public place then no permission is needed. Under 18 is a different matter.

Here in France if a person, of any age, is recognisable, by way of an image or audio capture then written permission is required before these are published/diffused to the public.
Exceptions do exist - prosecutions are not uncommon!

Go New Zealand - destroy the French

 

[DrRusty]

Well that is interesting? I think it is a UK company using an image taken in France whilst my colleugue and.family (inc young daughter) were sking. Image is of daughter alone and recognisable.

The Tog might have been related to the business but I'm not sure??

I will let him know.

Thanks again for all the replies

 

[Canon Bob]

...... Image is of daughter alone and recognisable.....

"Recognisable" doesn't refer to how clearly the subjects features are shown. It refers to whether the general viewer/reader would know who the subject was. The law is there to afford public figures some right to privacy outside of their public lives.

Would I, or any other "general" viewer, recognise her as being your daughter?....probably not. The only other way that I see it as being in contravention of the law here is if the image was being used to mis-represent something.

Bob

 

[Leadingimagery]

Age has absolutely nothing to do with the legal question.

You are also pretty much wrong about the second part as well:
HRA/ECHR Art 8; Right to a private life.

Don't know where you have got that from, if someone is in a public place and over the age 18 then it's fair game, I have taken legal advice on this from the legal advisors at BIPP as I have previously had to photograph events and wanted to be sure. Under 18 is a different matter you need a permision slip signing from parent/gaurdian. Being an associate you do get perks and free legal advice is part of it.

France may be different but as it's EU now i can't see it being any different.

However a degree of common sense is needed. If on private property this can be different. Public land is deemed and a place that is open to the public.

If you consistantly follow and photograph an individual this can be seen as harrasment.

What you are confusing this with is the Human rights act 1998 and the right to privacy, so if you are in a public place lets say a park and you make every effort to go to a secluded place then yes you have every right to challenge but if you don't then it's not a problem.

If any of you are in serious doubt then don't take mine or anyone elses word for it I would reccomend legal advice.

 

[DemiLion]

There is absolutely no difference in English Law as to whether someone is 14 or 44 when it comes to photography regarding this specific case; there are guidelines, but no legal separation of age.

The HRA issue is a separate one. If the session was a portrait shoot as implied above, (a portrait shoot being a session whereby a photographer takes images specifically of the subject) and there is no contract for their further use, then under Art 8 of the ECHR, converted into English LAW in HRA 1988, the subject has an expectation of a "Right to respect for private and family life". In this case the right to a family holiday, and to have her portrait taken, without an expectation that those photographs will be used for commercial purposes.

Basically as the photographer didn't bother to get a release and it was a paid shoot, then he could well be in breach. It hasn't been fully tested in the English Court system as yet, but if someone were to push it, I'd imagine that the court would be likely to find in their favour.

This specifically relates to contracted shoots and not street photography by the way.

I'm not confusing anything by the way!

 

[HoppyUK]

Well that is interesting? I think it is a UK company using an image taken in France whilst my colleugue and.family (inc young daughter) were sking. Image is of daughter alone and recognisable.

The Tog might have been related to the business but I'm not sure??

I will let him know.

Thanks again for all the replies

French law might be different, but the best you can expect is for the image to be withdrawn. There can be no claim for compensation, however the image is used, unless there has been some unfair exploitation or derogatory misrepresentation.

And Demilion is right about the age thing. The law only makes a distinction there for obscene images of minors, though in the current climate it is obviously prudent to be more careful to avoid problems.

 

[Leadingimagery]

There is absolutely no difference in English Law as to whether someone is 14 or 44 when it comes to photography regarding this specific case; there are guidelines, but no legal separation of age.

The HRA issue is a separate one. If the session was a portrait shoot as implied above, (a portrait shoot being a session whereby a photographer takes images specifically of the subject) and there is no contract for their further use, then under Art 8 of the ECHR, converted into English LAW in HRA 1988, the subject has an expectation of a "Right to respect for private and family life". In this case the right to a family holiday, and to have her portrait taken, without an expectation that those photographs will be used for commercial purposes.

Basically as the photographer didn't bother to get a release and it was a paid shoot, then he could well be in breach. It hasn't been fully tested in the English Court system as yet, but if someone were to push it, I'd imagine that the court would be likely to find in their favour.

This specifically relates to contracted shoots and not street photography by the way.

I'm not confusing anything by the way!

Well i better get in touch with the lawyers that BIPP use and tell them there wrong then, along with all the legal people i used to deal with in the Ministry of Defence!!

:shrug:

 

[HoppyUK]

There is absolutely no difference in English Law as to whether someone is 14 or 44 when it comes to photography regarding this specific case; there are guidelines, but no legal separation of age.

The HRA issue is a separate one. If the session was a portrait shoot as implied above, (a portrait shoot being a session whereby a photographer takes images specifically of the subject) and there is no contract for their further use, then under Art 8 of the ECHR, converted into English LAW in HRA 1988, the subject has an expectation of a "Right to respect for private and family life". In this case the right to a family holiday, and to have her portrait taken, without an expectation that those photographs will be used for commercial purposes.

Basically as the photographer didn't bother to get a release and it was a paid shoot, then he could well be in breach. It hasn't been fully tested in the English Court system as yet, but if someone were to push it, I'd imagine that the court would be likely to find in their favour.

This specifically relates to contracted shoots and not street photography by the way.

I'm not confusing anything by the way!

Well i better get in touch with the lawyers that BIPP use and tell them there wrong then, along with all the legal people i used to deal with in the Ministry of Defence!!

:shrug:

You missed the bit in bold "there are guidelines" but they are not law, even when it's an very good idea to adhere to them.

There is the law, which basically puts a cap on what you can and can't do. Then there is moral right and wrong, and then there is a big grey area in the middle where people push things as far as they want or dare, ie guidelines.

They are all different, and they all change over time in line with public opinion. The law also tends to take a while to catch up.

For example, you often hear that you can do this or that for 'editorial use' but not for commercial use. The law makes no such distinction, and drawing up a meaningful code would be extremely difficult as editorial is also commercial by definition - it's a business too.

When you get beyond that grey area and close to the red, that's when it goes to court and a jury has to decide each case on its merits. Their findings may set a precident, which sometimes eventually become law.

 

[boyfalldown]

The HRA issue is a separate one. If the session was a portrait shoot as implied above, (a portrait shoot being a session whereby a photographer takes images specifically of the subject) and there is no contract for their further use, then under Art 8 of the ECHR, converted into English LAW in HRA 1988, the subject has an expectation of a "Right to respect for private and family life". In this case the right to a family holiday, and to have her portrait taken, without an expectation that those photographs will be used for commercial purposes.

Basically as the photographer didn't bother to get a release and it was a paid shoot, then he could well be in breach. It hasn't been fully tested in the English Court system as yet, but if someone were to push it, I'd imagine that the court would be likely to find in their favour.

This specifically relates to contracted shoots and not street photography by the way.

it may not of been tested under the ECHR but that specific senario certainly has been tested under sec 85 of the copyright act in English law. There is a right to privacy in that section (albeit limited)

However its a bit of topic as the original request relates to French law, which as I understand it has considerably more privacy for the individual. I don't know enough to comment further though

 

[DemiLion]

Well i better get in touch with the lawyers that BIPP use and tell them there wrong then, along with all the legal people i used to deal with in the Ministry of Defence!!

:shrug:

Sounds like a plan. You might want to put the scenario to them first though.