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  1. #11
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting budwad
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    The photography company was under contract with the school. If the Photography company is to distribute the photos to the students, how would that happen with knowing the addresses of the students?
    well, that becomes their problem. You are making an odd argument. Necessity would not allow one to break the law. IF (and I emphasize the if as I don’t know and I’m not going to chase it since this is not really part of the question asked) it is required the students authorize the release of their personal information, unless they have (and as i said, it is quite possible they did at some point), the school providing such information to the photographers, regardless of any contract between the school and the photographer, it would be a breach of the student privacy rights to disclose such information.



    You are off the edge. If I send you a letter specifically to you, are you making the argument that I am advertising? Good luck with that.
    you’re ignoring the obvious. Why else would a sender use such ornate envelopes and lettering? Why else show the image through the cellophane area? The recipient is going to receive it ifmit was a plain white envelope and black block lettering. They would see all the pretty stuff inside. The sender wants everybody to see the pretty stuff the addressee is getting hoping anybody that sees the pretty stuff will want such pretty stuff for themselves.


    If you really doubt me, ask a few business owners who use such elaborate packaging why they do it.


    You are really reaching again. Again, the school contract to take photos of the graduates and send them a proof of the picture. They can buy it or not. Show me any law or case law that says that a one-on-one communication is considered an advertisement under the statute.
    now you’re arguing just to argue. The contract between the photog and school cannot supersede the rights of the student.

    Your demand for some law is ridiculous. An advertisement has a definition. There is no need to define it with a quantity of the target audience. An advertisement is quite simple. It is a publication intended to influence an observer to think or act as the advertiser wants them to. A mailing, especially an ornate mailing, clearly falls within that definition. It is intending to influence any observer to notice it and see something the advertiser is intending to display. The displayed image in the question at hand clearly is intended to influence any observer. That makes it an advertisement.

    But your argument of it being a one on one communication is both incorrect in your underlying intent and in the situation at hand.

    i receive many mailings that have no no means of identifying the actual sender. Plain white envelopes, black block lettering. Guess what’s inside: ADVERTISEMENTS. That makes your argument incorrect. It is a one to one communication but it is an advertisement. Now, if you want to go further, if I lived in California and the communication inside used your image (and it was neither an incidental inclusion within an image of other items nor had you granted the sender permission), it would violate the law I cited. The fact here that the image is also ofmthe recipeint does not preclude the mailing from being an advertisement (which it clearly is if for no other target than the recipient). The fact the image and identity of the sender is exposed to the general public causes it to fall under the law I cited.

    Show me a law that rewuires some publication to be exposed to some specific number of people before it qualifies as an advertisement. You can’t. This issue is quite similar to defamation laws, at least regarding publication. Any observance by a third party or the defamatory material is considered publication. In this issue, any observance by a third party would qualify it as advertising.


    I simply disagree. But you have at. Just try to us the law to make your point and not just be bloviating.
    i did but you won’t accept even that.


    (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 for any damages sustained by the person or persons injured as a result thereof.  .


    i suppose a very technical reading of the statute would allow this to be an illegal use of the girls image even if it was not visible until the envelope was opened.

    The photogrpaher has knowingly used the girls image in a manner (law allows for ANY manner) for the purpose of soliciting the purchase of products (attentions to sell photographs) without the persons prior consent. (As it stands it is presumed by the op there was no such permission given)

    So, unless the girl requested the solicitation, by a strict application of the law, what the photographer did, even if the image was seen by nobody other than the girl, violates the law

    If you disagree PROVE me wrong. No more of your challenges or bullshit. Prove me wrong.

    Even without the super strict reading, , the mailing clearly falls under the definition of an advertisement.

    Quote Quoting llworking
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    Bud, it was a solicitation. The student didn't order from the studio (and therefore the school didn't get a commission) and it was a last ditch effort to try to get the student to order the portrait. Again, this was explained in the OP's original post. I suspect that the picture showed through the window in the hopes that the envelope wouldn't just be tossed without seeing what was inside. Either you are not reading what was actually written by the original poster or you are deliberately twisting facts.

    Since the original post wasn't all that long, everybody can read it for themselves and see the true facts of the matter. Therefore I do not understand why you cannot do the same.

    Yes, it was quite questionable for the school to have given the photographer addresses of students who DID NOT ORDER pictures.
    I think bud has an old man crush on me and simply wants my attention. He seems to initiate ridiculous arguments with me with regularity. I can’t think of any other reason than he wants me to pay attention to him.

  2. #12
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting RidinginCali
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    Sending the photo visibly by mail seems unsafe and troubling, but I'm not sure it's illegal.
    It's not.


    Quote Quoting RidinginCali
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    Were any privacy and/or personal property rights violated?
    No.


    Quote Quoting RidinginCali
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    I read that, for example, the right to publicity is a personal property right.
    It is. In California, the right of publicity is codified in Civil Code section 3344 (the courts always note that there is a separate, common law right of publicity, but I've never seen a court articulate a meaningful distinction between the statutory and common law right). What you described does not violate it.

  3. #13

    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    I read the statute, thank you for the link. In my non-lawyer's opinion, the statute was violated. It would probably not be possible to prove damages occurred, but the statute states $750 minimum plus attorney fees, and possible punitive damages.

    I think that the communication was an advertisement, even more so because it was addressed to the "family of xx" (plus the mail worker seeing it as discussed above, here). Therefore, the company used the student's image to advertise to me and anyone else living at the address. The statute does not say that a minimum amount of people need to see it to make it an ad. The student may or may not have signed something giving the college permission to give their address to select businesses, but the student certainly never signed something giving permission for 3rd parties to use their image.

  4. #14
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting RidinginCali
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    I read the statute, thank you for the link. In my non-lawyer's opinion, the statute was violated.
    The statute is violated when a person's "name, voice, signature, photogrpah, or likeness" is used "on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services." All the photographer did was take a picture of the student and offer to sell her prints of that picture. That's not what the statute covers. Moreover, the U.S. Copyright Act gives the photographer the right to do this. 17 U.S.C. section 106. If, instead, the photographer had taken the picture and used it to advertise hair color or hipster clothing, that would be a violation. See Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005) and Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001).

    But if the student wants to try and find a lawyer to send the photographer a nastygram and demand money, she probably can find a sufficiently desperate lawyer. I doubt it will get her anywhere.

  5. #15
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    Oct 2016
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    For those of you that think it was illegal. Do you think the sending of the photo trying to sell is illegal or the issue that it was visible through the window on the envelope?

  6. #16
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting PayrolGuy
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    For those of you that think it was illegal. Do you think the sending of the photo trying to sell is illegal or the issue that it was visible through the window on the envelope?
    I think that the OP's issue was that is was visible through the window on the envelope, therefore linking image with name and address. I have no real opinion as to whether or not it was illegal. My only issue was that I did not think that Budwad was addressing the OP's actual concern.

  7. #17
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting PayrolGuy
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    For those of you that think it was illegal. Do you think the sending of the photo trying to sell is illegal or the issue that it was visible through the window on the envelope?
    my useless opinion;


    Itt that is shows through the envelope. It is intentionally packaged as a marketing tool I.e. advertising.

  8. #18
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting llworking
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    Quote Quoting PayrolGuy
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    For those of you that think it was illegal. Do you think the sending of the photo trying to sell is illegal or the issue that it was visible through the window on the envelope?

    I think that the OP's issue was that is was visible through the window on the envelope, therefore linking image with name and address.
    I think you're right and, if so, this is utterly irrelevant to the right of publicity issue.

  9. #19
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting pg1067
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    I think you're right and, if so, this is utterly irrelevant to the right of publicity issue.
    Actually it makes it precisely about the kids right of publicity. In California one has the right to control their image when it is being used for publicity purposes. In this issue the photographer has usurped the girls rights and has used her image for his purposes of publicity without the girls permission.

  10. #20
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    Nov 2013
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    Default Re: Photographer Sent Unsolicited Visible Portrait by Mail

    Quote Quoting jk
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    Actually it makes it precisely about the kids right of publicity. In California one has the right to control their image when it is being used for publicity purposes. In this issue the photographer has usurped the girls rights and has used her image for his purposes of publicity without the girls permission.
    Except for the fact that the only one that was solicited was the subject of the photo. There was no third publication of the girl's image to solicit anyone else.
    '

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