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SportsShooter.com: Member Message Board

Applebees wants our photos!
Paul Alesse, Photographer
Coram | NY | USA | Posted: 8:27 AM on 12.01.11
->> We have been approached by Applebees Corp regarding usage of our photos. You may have seen how restaurants like Applebees uses local sports photos to decorate the interior of their restaurants in order to attract a local clientele. Furthermore, Applebees has extended their hours in many restaurants until 2 AM, catering to the young adult crowd that like to go out after a night of partying. Essentially, they are pulling these "kids" out of the local diners and into their restaurants with half price apps and other specials. It has been a pretty ingenious marketing move on their part. But, anyway, I digress.

I had always wondered how they get these images of local school athletes and now I'm starting to understand how.

We have been given a proposal (no need to cut and paste it here) which in essence is asking for high rez images of our HS sports action shots. They are also including a release waiver. There is no mention of payment or incentives, so I'm going to raise the questions with you guys and gals...

1) Has Applebees or any of the other franchised restaurants used your images?

2) Do they offer any type of renumeration or incentives (i.e. gift cards, free meals, etc.)

3) How are they able to legally post pictures of the athletes without obtaining a model release from each and every kid and their parents? As far as I can tell from their proposal, the release we are given is just a release to allow usage of OUR photos... nothing about a release regarding the minors depicted in the photos.

It's a topic that I'm very interested in, so let me know if you have any first hand experience.

As an FYI... we have no intent on giving these photos to the restaurant for free. Especially given the fact that their new direction in marketing to the younger crowd has garnished them millions of dollars between the hours of midnight-2 AM.
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Scott Serio, Photo Editor, Photographer
Colora | MD | USA | Posted: 8:41 AM on 12.01.11
->> There are several points....

1. I think they can get away with the photos only if the image is about the image, not the kid, if that makes sense. If they want a nice image that shows a particular school, that is one thing, but if they want a specific kid, I think they definitely need a release. I could be wrong, but since the photos were taken at events open to the public, that would be my take.

2. We were approached before by a few restaurants in Kentucky, a smaller chain I think, about horse photos. We gave them a price to license the images, got the "but we'll give you credit" schpiel, said sorry-cash only and never heard from them again.

I am sure someone has a simple answer on the waiver thing that is more law-based than mine, but that is my understanding.
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Chris Cecere, Photographer
Rochester | NY | USA | Posted: 9:21 AM on 12.01.11
->> I get this request every year. As soon as I return a email mentioning monetary compensation I never hear back from them.
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Dave Einsel, Photographer, Photo Editor
Houston | TX | United States | Posted: 9:49 AM on 12.01.11
->> FYI

http://www.sportsshooter.com/message_display.html?tid=27944
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Pat Lovell, Photographer
Bloomington | IN | US | Posted: 9:54 AM on 12.01.11
->> They want them for nothing.... I've been approached by Applebees as well and when I told them my cost, they did reply and said they didn't have a budget but would give me "credit".... The funny thing is, I've been in many different Applebees and have seen many, many photos but I've never seen one with credit listed on the image. So, they are either paying for them or not following through with credit as promised... and No, I didn't give them images for credit.

However, don't be afraid to reply with a proposal, I have photos in many Indy bars and restaurants (Indianapolis Indians) and have been paid for them all.
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Michael Ciu, Photographer, Assistant
Lorain | OH | USA | Posted: 10:04 AM on 12.01.11
->> We were approached by Applebees a few years back when they opened a new location in our area. When we were notified that they did not have a budget for this we offered to donate prints to them. They agreed and only wanted 8x10s. When we delivered the prints, they did not bat an eye when they had all of our studio information on them, Studio name, address, phone, website. When they first opened we heard a lot of "hey we saw some of your pictures at the new Applebees." that has since died down now, but it was notice and we felt is was worth the cost of an 8x10 prints (probably was under $10) for the advertising which are still hanging.
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Tim Gangloff, Photographer
Knoxville | Tn | USA | Posted: 10:29 AM on 12.01.11
->> I was approached by Pizza Hut about a year ago. They were redoing the local one and wanted to incorporate some of my HS images. They offered a generous amount of pizza and my family sometimes dines there, so it would have been something I would have been open to do. I asked them about model releases and never heard back from them. I called and left messages, but never heard back from their marketing person. I've not yet been into the new store to see if they are using someone else's images or dropped the idea altogether.
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Andrew Link, Photo Editor, Photographer
Winona | MN | USA | Posted: 10:30 AM on 12.01.11
->> Assuming the photos are online and the public is able to order prints from galleries, wouldn't you just direct them to where they can purchase the prints?

Do they need a release since any John Doe can order a print and hang it anywhere they choose?

Just wondering. Thanks.
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Sam Santilli, Photographer, Photo Editor
Philippi | WV | USA | Posted: 10:51 AM on 12.01.11
->> Paul, we have been told by our loacal Applebee's that they got their prints from the yearbook staffs of the local schools. We also are talking to the Pizza Hut, which redid their resturant in local HS motiff. The general mgr has not called back.
I would offer credit X2 the retail, and you get to place your name & website on all of the prints. So...free advert & food for the family. But how is the "20 Something Drunk" crowd going to even read your name on the prints?
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George Bridges, Photographer, Photo Editor
Washington | DC | USA | Posted: 10:54 AM on 12.01.11
->> Andrew, there is a difference in any John Doe buying a print and giving it to Grandma as a Christmas gift and a restaurant hanging it in a commercial location.

An athlete's picture on the wall of a restaurant could constitute an endorsement of the business and could lead to problems with amateur athletic associations even if they don't receive payment. And it can create other problems such as the local quarterback may be the son of the owner of the local Chilis franchise and would not want his picture associated with a competitor.
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Bob Ford, Photographer
Lehighton | Pa | USA | Posted: 10:59 AM on 12.01.11
->> Andrew there is a difference between hanging a photo in your living room wall, and publicly displaying an image in a commercial establishment.
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Paul Alesse, Photographer
Coram | NY | USA | Posted: 11:08 AM on 12.01.11
->> Thanks everyone so far for all the information here and in your private emails. Dave... I forgot all about that post and I even responded to it...LOL. Senior moment.

Added into the fray of discussion on a personal level is in regard to my day job. I'm also a teacher in the same area where these images are going to be used.

Do I really want my images of minors hanging in a restaurant that serves alcohol and in the same area where I teach? I don't think so.

Thanks again.
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Daniel Berman, Student/Intern, Photographer
Seattle | WA | US | Posted: 2:20 PM on 12.01.11
->> Applebees contacted me for images in the Bellingham are and we worked out a fair and equitable licensing agreement for six of my images. They certainly did not get them for free.

Daniel
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Michael Prengler, Photographer
Fairview | TX | USA | Posted: 2:46 PM on 12.01.11
->> Maybe Applebees would like their meals paid for this way :)

http://www.prengler.com/portfolio/funny/applebees-credit.jpg
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Bruce Twitchell, Photographer
Coeur d'Alene | ID | USA | Posted: 3:00 PM on 12.01.11
->> "Andrew there is a difference between hanging a photo in your living room wall, and publicly displaying an image in a commercial establishment."

How? Both is art on the wall.
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George Bridges, Photographer, Photo Editor
Washington | DC | USA | Posted: 3:13 PM on 12.01.11
->> Bruce,

Read my post above Bob's.
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 4:47 PM on 12.01.11
->> Bruce,

What George and Bob are trying succinctly explain is that it is where the "art" is displayed that makes the difference.

The owner of a piece of art usually acquires private viewing right with the purchase. Unless otherwise stated, those rights generally include displaying the piece in their home or private office (even if that office is within a business establishment).

A piece displayed in a public area of a business or office has long been held commercial use. In this case, not only would the print need to be licensed by the establishment or company, but also model-releases must be secured of every identifiable person in the photo. Then there is the issue of property and trademark licenses that would need be secured as well by business (or photographer). Depending on the state, display of one's likeness in a commercial environment without their expressed written permission is considered misappropriation of likeness. The subject who's likeness has been infringed upon can sue the party displaying the image they are in for damages.

As in everything in life, there is one exception. Art galleries, while a commercial establishment, for the purpose of displaying art (even if for sale), falls into the categories of both editorial and private displays.
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Mike Janes, Photographer
Attica | NY | USA | Posted: 6:36 PM on 12.01.11
->> I've been contacted by at least three different design agencies working for Applebees over the last year or so in three parts of the country, for credit of course, can't even get a complimentary side order!

The first one wanted professional athletes photos and disappeared after telling me they had no budget to pay photographers, he seemed confused I was asking to be paid for my work. He also ignored my question about model releases of the athletes in the images, guess that wasn't important enough question to answer.

The second didn't even reply when I told him we do not give images away free.

The third girl actually talked money, until we quoted her how much and she asked if it was per photo or for all photos - apparently she didn't like the answer per photo because haven't heard from her since.
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David G. McIntyre, Photographer
Beijing | . | CHINA | Posted: 8:35 PM on 12.01.11
->> I think I will go into Applebee's and ask about having a meal, and say I have no money, but will give them credit when I tell people where I ate.
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Doug Holleman, Photographer
Temple | TX | USA | Posted: 11:18 PM on 12.01.11
->> Years ago I went to an Applebee's with a 24X36 print of a local star playing in the NFL. It was a really nice, tight shot. Asked for the manager and showed it to him. He and all the staff were really complimentary of it and asked what I wanted for it. I said, "How about $60?"
He just rolled it back up, put it back in the tube and walked off without saying a word.
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Doug Holleman, Photographer
Temple | TX | USA | Posted: 11:19 PM on 12.01.11
->> I guess they thought I'd give it to them for some cheese-fries and a diet coke.
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Bob Ford, Photographer
Lehighton | Pa | USA | Posted: 12:53 AM on 12.02.11
->> Bruce, others have discussed it, but I figured I'd respond too, since it was my post that you quoted.

From the website:
http://www.clickandcopyright.com/copyright-resources/copyright-infringement...

"The Public Display Right. This is the right to show a copy of the work directly to the public by hanging up a copy of the work in a public place, displaying it on a website, putting it on film or transmitting it to the public in any other way. Copyright infringement occurs here if the someone other than the copyright holder offers a work for public display."

The last sentence spells it out pretty clearly.

It's similar to the music industry. While you can by a CD and listen to it all you want, if a restaurant or bar has a juke box someone has to pay an additional licensing fee. Whether the coin-op company pays it, or the bar owner, someone has to pay about $450 a year in licensing. Failure to do so could lead to a copyright claim for every song played.
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Alan Herzberg, Photographer
Elm Grove | WI | USA | Posted: 9:37 AM on 12.02.11
->> If Applebees wants to purchase prints to hang on the walls of their commercial establishment, doesn't the responsibility for obtaining any model release that is required fall upon Applebees, particularly where the photographer discloses to Applebees that he/she has not obtained a model release for anyone in the photograph?

Can anyone point me to any cases or publications that have actually held or asserted the need to obtain a model release when displaying a photograph on walls as simply part of the decor? If the photo is not being used in a manner or context where it implies any individuals depicted support or endorse Applebees, why would a release be needed? My gut reaction is that just because the photo is displayed in a commercial establishment, that doesn't make it ipso facto a commercial use of the photo.

Just wondering and eager to be educated...
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Paul Alesse, Photographer
Coram | NY | USA | Posted: 11:02 AM on 12.02.11
->> As a follow up... Applebees has responded to our request for compensation and has stated, that there are funds available. So, we are in negotiations.

Thanks everyone for their feedback.
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Bruce Twitchell, Photographer
Coeur d'Alene | ID | USA | Posted: 1:48 PM on 12.02.11
->> Bob- Thank you for that link.
The copyright infringement then would be against the photographer, not the people in the photo.

The part of this discussion that I have a problem with is that if I want to sell a photo of mine to a business for them to hang up in the business, I need to get permission from the people in the photo. Just because the person is in the photo does not imply endorsement of said business.

If the photographer sells a photo to a business and the photographer gives permission for it to be hung up in the business, there should not be an issue.
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Bob Ford, Photographer
Lehighton | Pa | USA | Posted: 2:03 PM on 12.02.11
->> Bruce, actually, the infringer would be the restaurant. The photographer can't infringe upon his own copyright.

The model release issue is caused by the fact that it's a commercial use but the restaurant.
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Louis Lopez, Photographer
Southern California | CA | USA | Posted: 2:11 PM on 12.02.11
->> Paul,
I got the same email from Applebees stating that they have a budget to pay for photos and actually they listed specific high schools they wanted photos of players from, they included a link to send photos and everything. I responded with specific usage and licensing fees and they never responded.
my guess is if you even sound like you know what you are talking about they don't want to deal with you.
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Butch Miller, Photographer
Lock Haven | PA | USA | Posted: 2:20 PM on 12.02.11
->> "Just because the person is in the photo does not imply endorsement of said business." ... in many instances it does "imply" endorsement ...

Bruce, the point you are overlooking is that when a business displays "art" in a commercial establishment it is for the benefit of their clientele, to make the venue more pleasing and desirable for those customers. They do so to either increase or re-inforce customer loyalty. That can be considered a commercial endeavor by reasonable thinking folks. When that art depicts recognizable faces it can be interpreted that the subjects in that art are offering at least a tacit endorsement of said business or at the very least the business is seeking financial gain by using the image to gain a following.

If you don't think so, just poll a handful of attorneys and you will discover any issue, no matter how loosely interpreted can be taken to court and argued.

if the subjects in the images were to ever have an issue with their likeness associated with a business they would rather not be associated with, there is a good likelihood you will hear from one of those attorneys. However, with a model release on file, the probability of legal issues is much less because the subjects gave their approval for the use. At the very least ... it is a courtesy to the folks you photograph to acquire their permission for this type of use. Just as you would consider it courteous of them to seek your permission to use your images in a manner that was not agreed upon previously.
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Bruce Twitchell, Photographer
Coeur d'Alene | ID | USA | Posted: 3:01 PM on 12.02.11
->> Bob- What you said about the infringement is what I meant, the restaurant would be infringing against the photographer.

Butch- "That can be considered a commercial endeavor by reasonable thinking folks." Not too many would say I am a reasonable thinker. :)

I do understand what all of you are saying, I personally do not see it as commercial use.

If you look at the case of Nussenzweig v. DiCorcia-
http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

Read under the "Lawsuit" section of this link-
Accordingly, the court held that Nussenzweig could not block the publication, display or sale of the photograph containing his likeness, and that he was entitled to no money from the photographer, the gallery or the book publisher.

Yes, a model release would be better and the polite way to go, but as far as laws go I believe that the above case says that it is not needed when the photo is being sold and displayed as art, not an advertisement.
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Bob Ford, Photographer
Lehighton | Pa | USA | Posted: 4:38 PM on 12.02.11
->> Bruce, the big difference, as stated above, is that galleries are considered editorial, not commercial.
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 12:39 AM on 12.03.11
->> Bruce wrote: "I do understand what all of you are saying, I personally do not see it as commercial use."

You also wrote: "...the photographer gives permission for it to be hung up in the business, there should not be an issue."

You may not, but every state in this country does and have laws to protect the citizens of their state right's to publicity, commercial use of their likeness and right to privacy. They vary for state to state with New York and California having the most codified of statutes.


Bruce wrote earlier: "The part of this discussion that I have a problem with is that if I want to sell a photo of mine to a business for them to hang up in the business,... I need to get permission from the people in the photo."

No, you do not. However, if you do or have them, you can and should be charging a premium. Back in the day when people use to make money from selling stock images, having a model release from the subject(s) meant you could charge substantially more for an image.

You can "license" or sell the image - note their is a distinction between selling and licensing - to a business without a model release(s). The burden of getting permission is bore by the company displaying the image and should be done so prior to display. Your licensing agreement or copyright transfer should clear state that no releases exist and the client must secure the releases as well as agree to hold you harmless against any claims arising from misuse of the image. You must also look beyond model releases. Are trademarks pictured? Is there real property (a private home) or an easily identifiable, unique object that does not belong to the photographer or the buyer in the photo. Property and trademark releases are just as important as model release.


"Just because the person is in the photo does not imply endorsement of said business."

On a cognitive level, I agree with this statement to a point. That is the purpose of the release to allow the subject to volunteer the use of likeness in conjunction with a commercial venture. However, on a more subliminal level, as Butch Miller wrote: "...the point you are overlooking is that when a business displays "art" in a commercial establishment it is for the benefit of their clientele, to make the venue more pleasing and desirable for those customers. They do so to either increase or re-inforce(sic) customer loyalty. That can be considered a commercial endeavor by reasonable thinking folks. When that art depicts recognizable faces it can be interpreted that the subjects in that art are offering at least a tacit endorsement of said business or at the very least the business is seeking financial gain by using the image to gain a following."


"If the photographer sells a photo to a business ... there should not be an issue."

If the photographer "sells" the photo - assuming you mean the transfer of the copyright - as opposed to licensing - giving the buyer certain rights to use/display the image for a fee - then it is not an issue. Generally, the business establishment displaying the image would be held accountable, regardless if the image was purchased or licensed.
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Bruce Twitchell, Photographer
Coeur d'Alene | ID | USA | Posted: 10:13 PM on 12.03.11
->> Clark wrote: "You may not, but every state in this country does and have laws to protect the citizens of their state right's to publicity, commercial use of their likeness and right to privacy."

Can you provide any cases or statues that say a photo of a sporting event hanging in a restaurant is commercial use? That is the basis of my argument, I say it is not commercial use, that it is art handing on the walls, decoration, just like a patterned wallpaper or paintings.

I will clarify that when I have said selling an image, I meant and should have said selling a print.

Clark wrote- "You may not, but every state in this country does and have laws to protect the citizens of their state right's to publicity, commercial use of their likeness and right to privacy." When athletes are playing in a football game in front of hundreds if not thousands of people, where cameras are all over the place and possibly tv cameras as well, there is no implied right to privacy, especially when the person has the ball in the middle of a game.

I think all of us have been in restaurants where they have all sorts of crazy decorations all over the place with items from yesteryear and today as well. If we go by what Butch said, then each of these restaurants need to get permission from the estate of Charlie Chaplin, Ted Williams, etc. because the photos, small statues, baseball cards, etc. are being used as a branding for the restaurant and thus commercial use. Is this correct?

Re-reading over this thread I really like what Alan Herzberg asked and bears repeating-

"Can anyone point me to any cases or publications that have actually held or asserted the need to obtain a model release when displaying a photograph on walls as simply part of the decor? If the photo is not being used in a manner or context where it implies any individuals depicted support or endorse Applebees, why would a release be needed? My gut reaction is that just because the photo is displayed in a commercial establishment, that doesn't make it ipso facto a commercial use of the photo.

Just wondering and eager to be educated..."

Can anyone provide an example?
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Jayne Oncea, Photographer
Saugus | CA | USA | Posted: 10:23 PM on 12.03.11
->> I gave the athletic director of a high school (when I lived in Oregon) some prints for the SCHOOL to use for their award displays, athletes selected for all-state type teams, etc and just for the school...I go into this new Applebees and wow, all my images ALL over the place. I talked to the manager and asked how he got them and they were mine and needed at least a photo credit or something (dinner). I knew they would never give me any $$...he said no, the high school gave him the photos. I said that they didn't have permission to give away my photos for any other use than for the high school. He didn't care and said I had to take it up with the school--
it was a waste of my time trying to fight them. needless to say, I never ate there or will go into any other applebees.
And I learned a lesson...to put a © on EVERYTHING I give to ANYBODY!
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 10:48 PM on 12.03.11
->> Clark wrote- "You may not, but every state in this country does and have laws to protect the citizens of their state right's to publicity, commercial use of their likeness and right to privacy."

Bruce replied - "When athletes are playing in a football game in front of hundreds if not thousands of people, where cameras are all over the place and possibly tv cameras as well, there is no implied right to privacy, especially when the person has the ball in the middle of a game."

Correct.

I think all of us have been in restaurants where they have all sorts of crazy decorations all over the place with items from yesteryear and today as well. If we go by what Butch said, then each of these restaurants need to get permission from the estate of Charlie Chaplin, Ted Williams, etc. because the photos, small statues, baseball cards, etc. are being used as a branding for the restaurant and thus commercial use. Is this correct?

Yes, unless the copyright or trademark has expired. McDonald's Rock and Roll themed units are a good example. If you were to visit five stores, you would see the exact same photo set, may not in the exact same location within the store layout, but you would not find much deviation between locations. Those images and memorabilia were all licensed obviously acquired through one source.
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 10:55 PM on 12.03.11
->> Bruce wrote: "I will clarify that when I have said selling an image, I meant and should have said selling a print. "

To clarify further ... if the photographer "sells" an digital/print/negative/transparency all aka an image - this indicates a transfer of all rights of ownership or the copyright. As opposed to licensing - giving the buyer certain rights to use/display the image for a fee or most cases for free these days. The media the image resides doesn't make a difference. No change from the response above.
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Bruce Twitchell, Photographer
Coeur d'Alene | ID | USA | Posted: 11:12 PM on 12.03.11
->> Clark wrote: "if the photographer "sells" an digital/print/negative/transparency all aka an image - this indicates a transfer of all rights of ownership or the copyright."

No, this is not a transfer of the copyright, it is the sale of a print that has the image on it.

"Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the trans­fer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent."-
http://www.copyright.gov/circs/circ1.pdf

Selling a print does not constitute transfer of copyright otherwise all portrait photographers would not hav a leg to stand on when they sue violators for making copies of prints.
"Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph."
-
http://www.copyright.gov/help/faq/faq-fairuse.html
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Chuck Liddy, Photographer
Durham | NC | USA | Posted: 11:42 PM on 12.03.11
->> my head hurts. I never eat at applebees. their food sucks.
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 12:48 AM on 12.04.11
->> Bruce:

Technically, not colloquially, "sell" indicates a transfer of ownership of all or part of the rights of intellectual property.

The process you are describing is actually known as licensing and is what technically occurs when a photographer, as you and others refer to it as, "selling a print".

When a photographer, as you describe "sells a print", they are generally, unless otherwise agreed to in writing as you stated above, are granting a specific set of right from the plethora of those that may be granted by the owner of intellectual property. Sub dividing those rights without the transfer of ownership rights is commonly referred to as "licensing". When mom or pop who purchases a photo of Jon A. Thlete running the football or Lucie D. Otte's senior from a photographer, they are generally purchasing commonly accepted license known as private viewing rights, which are generally perpetual in nature and allow only a specific set of uses. Uses beyond those included in private viewing rights are infringement.

The reason 90% of population believes they have the right to do whatever they want with a photo once the photographer "sells" it to them, is because 95% of the photographers in the business do not know or understand the correct terminology or process.
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Bruce Twitchell, Photographer
Coeur d'Alene | ID | USA | Posted: 1:08 AM on 12.04.11
->> Clark- I thank you for that clarification. Do you have a link by chance that can give me more information using the correct terminology, especially when dealing with clients? I would like this for myself as well as to share with my high school and college students.
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 1:29 AM on 12.04.11
->> Bruce wrote: "Can you provide any cases or statues that say a photo of a sporting event hanging in a restaurant is commercial use?

I don't think anyone would be able to find any statues as examples. If so, it would impress a large number of people. Additionally, laws saying specifically that the act of displaying an image from a "sporting event is commercial use" is a civil or criminal offense will be just as unlikely.

As of today, as far as I'm aware of most states do not have right to publicity laws on their books. Here is are samples from those I know exist.

California's statutes,(CAL. CIV. CODE § 3344 : California Code - Section 3344) say, "(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable... "
http://library.findlaw.com/1998/Feb/1/130405.html

New York statutes say, (Article 5 - Sec. 50. Right of privacy) "A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, ..."
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$CVR50$$@TXCVR050+&LIST=SEA129+&BROWSER=BROWSER+&TOKEN=05013223+&TARGET=VIEW

In Illinois: "Commercial purpose" means the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising."
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCAQFjA...

Again, as Mr. Miller points out, it would not be unreasonable to argue that the use of a person's likeness and photograph, which use is for the purpose of soliciting patronage, implied endorsement - depending on how the image is displayed - or customer loyalty and association. The end goal to acquiring that loyalty is those patrons purchasing goods and services at the establishment. In all three states, using the subject(s) likeness without prior consent, without a properly executed model release, is covered by this code. The key phrase in Illinois is "...in connection with the offering for sale or sale of a product..." which makes the display by a business without permission of the subject a violation in Illinois.

It will further your understanding you might take the time to read this:
http://www.wipo.int/sme/en/documents/ip_photography.htm
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 1:34 AM on 12.04.11
->> "...but every state in this country does and have laws to protect the citizens of their state right's to publicity,.."

This is incorrect. Not every state has laws concerning this issue. I apologize as I was intermingling privacy rights and publicity rights. At the moment, I'm actually unsure of how many states have right to publicity statutes. The last time I researched this area it was around 20.
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Tony Leon, Photographer
Whittier | CA | United States | Posted: 1:28 PM on 12.04.11
->> To quote you from Louis Lopez from his post.....

"I got the same email from Applebees stating that they have a budget to pay for photos and actually they listed specific high schools they wanted photos of players from, they included a link to send photos and everything. I responded with specific usage and licensing fees and they never responded.
my guess is if you even sound like you know what you are talking about they don't want to deal with you."

It appears he maybe 100% correct, having had discussions myself with local Applebees, and Chili's for that matter, the minute I told them specific use and licensing terms, I never heard from them again.

I think they're betting on PWAC's (Parents With A Camera) to supply them with the images.

Reading through the posts it appears that this is being done at the local store level. As it appears Applebees has paid some (post from Daniel Berman), not others, free advertising? (post from Michael Ciu), and ignored many when asking for payment.

"75% of Applebees are independently owned and operated"
http://www.slate.com/articles/arts/number_1/2005/03/the_big_applebees.html

Which leads me to believe that each Restaurant owner is making these decisions about "Buying" or Licensing photos.
However the idea as to be coming from the Applebees Home Office, as I can't see all 75% asking for the same style photos to be displayed.

Hence the wide array of responses from individual restaurants.

You're dealing with individual store owners, NOT a corporate entity which should and would know better.

If copyright is violated, my guess is that it would end up on the individual store owners lap.
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Paul Alesse, Photographer
Coram | NY | USA | Posted: 3:23 PM on 12.04.11
->> Neither the restaurant manager nor owner is involved in the decision making with the interior decorum of this particular establishment. They are not even in the loop. At least, not in our case. The third party contracter is the one who contacted us and they were contracted by Applebees. The interior design contracter specializes in wall murals and wants the high rez files to make into collage murals. They are not employed by Applebees... they are freelance contracters who won a bid and now have to work within a budget. THEY are the ones deciding how much funds to allocate to the photos in this project.
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Mark Loundy, Photo Editor
San Jose | CA | USA | Posted: 4:00 PM on 12.04.11
->> Somewhere, there is a group of attorneys passing this thread around and pissing their pants with laughter...

Experts in the media industry will tell you that displaying an image in a (non-gallery) commercial establishment is commercial use. Honestly, there is no serious doubt about this among people who do this sort of thing for a living.

I would not advise displaying a picture of ANYBODY in a restaurant, without a release, lest you discover, too late, that they are the child of a lawyer.

You don't need to live in a state with a personal publicity statute to be sued for unauthorized commercial use of likeness.

Jayne,

Don't talk to the store manager. Have your lawyer contact the Applebee's legal department. I guarantee the photos will be pulled down or you will be offered payment.

--Mark
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Joseph Zimmerman, Photographer
Howard | Pa | USA | Posted: 6:21 PM on 12.04.11
->> Mark, I don't doubt what you say but I'm curious how they do it now? The Applebee's near me has all the walls full with tv/movie star photos. Do they have to pay them to use their photos or is it different since they are public figures?
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Doug McSchooler, Photographer
Avon | Indiana | United States | Posted: 10:15 PM on 12.04.11
->> I don't have a budget for Applebee's. Can I still eat there if I give the credit for feeding me? I promise to tell everyone that I know.

Of course, I will have to be honest with everyone and tell them if the food is undercooked, or not of a professional standard. The quality that I would expect regardless if it's free or not.

[sarcasm above]
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Mark Loundy, Photo Editor
San Jose | CA | USA | Posted: 2:08 PM on 12.05.11
->> Joseph, I don't know. I've never dealt with Applebee's as a client and only know what I've read in this thread.

--Mark
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Mark Loundy, Photo Editor
San Jose | CA | USA | Posted: 2:14 PM on 12.05.11
->> Someone suggested to me in an offline message that my 12/4/11 post in this thread was too harsh and discouraging to others who might post here.

I was responding to what I think are statements about the law being made by people who are not informed about the law. If a group of lawyers were discussing photography and making statements about how larger f/stops create a larger dynamic range in an image, there would be people here pissing their pants over it, and rightly so.

I consider the primary value of this discussion board to be educational. In recent years (decades?) business and legal issues have become critically important to photographers and it is important that legal Urban Myths not be allowed to stand unanswered.

--Mark
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Joshua Lindsey, Photographer, Student/Intern
Bowling Green | KY | United States | Posted: 11:22 PM on 12.05.11
->> I was contacted by an art director for Applebees last year and they asked if they could purchase prep sports picture for the restaurant. They made a pretty fair offer for what they wanted, and I was paid quickly. Pretty good experience.
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Jared Wickerham, Photographer
Pittsburgh | PA | U.S.A. | Posted: 4:32 AM on 12.06.11
->> Just talked with a friend who shoots in NY state where Applebees offered him $2k for a dozen or so high school football as well as local parade photos to use in their restaurant.
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