Do I have the copyrights to post a picture I took of someone on instagram?

Question

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.

Answer 1

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.

Answer 2

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.)

  • Digital Media Law Project: Using the Name or Likeness of Another

  • Wikipedia: Personality Rights

  • Right of Publicity Statutes

• 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.)

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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...

Answer 7

The information in this answer is general; I have no specific knowledge about Florida.

The question is:

Do I have the copyrights to post a picture I took of someone on instagram?

The question body breaks this down slightly:

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

Neither copyright question quite makes sense. It should be the singular “copyright”, and there is no such thing as “copyright to do something”: you either own the copyright or you do not. (Copyright can be licensed, but this does not seem relevant here.)

In this case, yes, you own the copyright. This is generally the case unless you take the photos while working for someone else, or you have a contract that states otherwise; neither seems to apply here.

Then there is the question of whether you can post it. Of course, as the copyright owner, you can. But there may also be other reasons, besides copyright, that you cannot post it; these need to be considered separately. These reasons include personality/publicity rights and intimate image laws. They also include Instagram’s terms, to the extent you post on Instagram (or other Meta-owned services, which have similar terms).

All these issues are covered in more detail by other answers.

The question is also tagged ethics, suggesting that it requests information on ethical as well as legal issues.

With the above in mind, here are some other issues with the question:

A girl messaged me on Instagram

This makes it sound like the subject was a client, and you should not distribute photos of the subject at all without the subject’s consent.

to take boudoir pictures of her at her house.

This makes it sound like the photos depict the subject in an intimate way, and certainly in a place not visible to the public, which reinforces the idea that you should not distribute the photos.

I … sent them. She said she loved them,

This reinforces the idea that the subject was a client.

but she asked me not post the sexy ones

Now it gets confusing. This suggests that the subject expected you to distribute the photos after all, but why would the subject expect this? It seems like part of this story is missing.

because her boyfriend found out about the pictures and wasn't happy about it.

This is really the subject’s boyfriend’s problem, or the subject’s problem if the subject wants to respect the boyfriend. It does not seem relevant to this question. What matters is that the subject asked you to not distribute these photos.

I told her I would not post them immediately because I never do anyway, and when I post I will not tag her.

And…? Was the subject happy with this response? It seems like another part of this story is missing.

A few months pass by, and I post one of the pictures, and it seemed fine.

Presumably you did not tell the subject about this post, and created it in such a way that the subject was unlikely to find it (you said you would not tag the subject). Wrongdoing always seems fine until you get caught.

But it had a nip slip

Presumably the significance of this is that the subject objects to it. This does not seem relevant …

which I didn't notice

… and normally this would not seem relevant either. But together, they make one wonder: What other objectionable things did you not notice? This further reinforces the idea that you should not distribute the photos.

until she flooded my inbox asking me to take it down. Now both her and her roommate are spamming me

If you were not supposed to post that photo (and there is a lot of evidence suggesting that was the case), and the subject asked you to take it down, that does not seem like “spamming”. This attitude is worrying.

saying I don't own copyrights to the images since I never paid for the shooting

This seems to be based on a common (according to my experience on Wikimedia Commons) misunderstanding, namely that the subject of a photo owns the copyright to the photo. In fact, the subject has no rights under copyright law and the photographer owns the copyright (unless an exception applies, as discussed above).

Finally, here is a general comment: even if there is more to this story, and we conclude from that that you have the right to distribute these photos, that does not necessarily mean that you should do so. In this case, the subject’s removal request seems to have been made in good faith to protect the subject’s interests, by hiding body parts or poses that the subject would not want anyone to distribute photos of; you might gain more than you lose by honouring such requests.

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I almost forgot: I am not a lawyer. But surely you knew that already.

Answer 8

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.