Wed Dec 23, 2009 11:50 am
Copyright and intellectual property rights law differs widely from jurisdiction to jurisdiction, so the only way to establish the legal character of your dillemma is through a lawyer(s) and the courts.
However, as a photographer (with an international law background) reading the paragraph in which you explain your issue, I have to say it looks very much like this person was a friend who posed for you (as a favour) while you were doing atutorial (not commercial) assignment, and that you gave this person the photographs because (at the time) they were of little (or no?) value to you. Effectively, it sounds like a no-strings-attached gift. It also sounds as good as if you had, for want of contrary evidence, "discarded" the photographs. I think you will have a big job trying to convince anybody, especially the courts, that you possess (and always intended to continue to possess) the intellectual property rights to those photographs. Of course, you would also need to think about how exactly you would proceed to prove that you took the photographs in the first place...
Frankly, my advice to you would be the same as dirtyol's - be more careful next time. I use a model release for everybody I shoot in the studio - unless I am willing (usually on the basis of personal friendship) to permanently relinquish the right to assert intellectual property rights. I would hesitate you use the word "theft" in this context (as suggested by arshutterbug). Based purely on your own description of the original events, I would think that a reasonable person would in fact assume that a gift had taken pace between friends - in the absence of any information about any form of agreement. This was obviously not a professional model, and neither was it a contracted photoshoot between two professionals. You would also need to think about the rights of the subject - in terms of usage, what limitations might he/she have assumed existed in relation to your use (perhaps commercially) of those photographs? You see, it's potentially hugely complicated. And we haven't even stopped to consider that social networking sites and a personal model portfolio may well be considered to be "personal" rather than "commercial" use on the part of the model - or what that means in your legal jurisdiction.
A lawyer will also ask you this simple question: on what grounds do you believe you are entitled to compensation (money) and how much compensation do you believe you are entitled to (i.e. what actual pecuniary damage have you suffered?).
Chris