TFCD or not, if you have not agreed on the terms of usage of the images, then you're argument is thin. On the other side of the coin though, if it can be shown that the images provide benefit to the agency (not just to the model for whom the images were taken) then your argument is stronger - but the agencies argument is that they simply provide a vehicle for the their models and effectively the website is acting as an electronic comp card.
In the end it will come down to who has the better lawyer.
Personally, I agree with you, but the law may not.
sk.images, ex - cyber_m0nkey
The thing to do is to get release/permission to do what you want to do. I can understand that models may not be well informed, but agents should and must.
Get the photographers to grant permission, that is so simple. Most of them will do it. Just a phone call and an email will do. Why such grand standing "... consultation with our legal advisers..." Such a waste of time, effort, and money.
"We are currently in consultation with our legal advisers on this issues. "
Why don't consult them before using the photo.
Should have asked the models to shoot with us in the first place but some of them are so busy and don't wish to carry out a shoot, so end up they just want to use their existing pictures. Some of the photos we took are not enough to portray the different looks that they can carry out so have to use other photos. Will advise them on what to do to prevent such episodes from happening again. We'll also look into our workflow to correct any faults.
Yeap, I tend to agree that commercial companies should be held to a higher standard than the average Joe or Jane. To pass the buck around isn't really the way. It is also legally suspect to say "Model told me okay so I assume its okay".
Its almost the same as saying "I'm not liable for selling you a pirated product because my supplier told me it is genuine". That unfortunately, may not always be sufficient to constitute a legal defence.
Instead, all this nonsense about legal advise, copyrights, model needs the compcard to promote are just that, why not a smile gesture, apologise and move on?
Apologies were done when Alvin contacted us initially.
This was what we wrote to him on 10 Dec 2007, via email.
" Hi Alvin,
We acknowledge your copyright and hereby apologise for the watermark on the picture. It was unintentional as the template that was used to do up the compcard for Amanda was based on another model and had such a mark.
We had failed to notice the watermark while doing up the card for Amanda. The pictures were given to us by Amanda. Thank you for bringing up this matter to us. We will remove the offending watermark immediately and if you wish, we can remove the picture as well.
All photos that were not taken by us had been presented to us by the models and used only after we had verified with that we may use them for the compcard. Only photos that were taken by us would be tagged with the Copyright. For those that were not taken by us for the model, we have splashed a tracer across the entire card to as a form of deterence against third parties cropping and copying any pictures.
Once again, we would like to offer our sincere apologies for our mistake on the watermark."
Then his post was found in this forum and in sghoot forum and we had to reply to him both over email and over the forums.
Once again, we'll like to take the chance to apologise for using his photos. It was never our intention to infringe upon copyrights of our fellow photographers.
I shall close this thread as the necessary have been said by both side. Let us learn from here and move on. thread closed