Nov 10

Copyrights and Photography

First, let me state that I am not a lawyer; I don’t even play one on TV. The information in this article is gleaned from various sources on the internet and, while I believe it to be accurate, you should do your own research.

Also, I am not going to cover all aspects of copyrights and photography, but rather just those that deal with people who want to take photos and perhaps provide those photos to others – either for free or for a price. Commercial photography, where you are taking pictures using models and intending to sell products, or licensing photos for commercial use is not going to be covered in-depth.

Issues

There are several issues that are raised when taking photographs for more than your own personal use:

  • The right of privacy
  • The right of publicity
  • Defamation
  • Property owner’s rights
  • Releases

The Right of Privacy

In the US, it is recognized that everyone has the right to privacy in their daily life and that harm, in the form of embarrassment, scorn, or loss of status can result if that privacy is violated. This has been interpreted to mean public disclosure of facts or images that are private and are not a legitimate concern of the public. However, the courts have long held that the First Amendment Rights of news reporting, research, education, criticism, public interest, and political, social, or economic commentary are generally exempt from the privacy rights, at least to an extent. Privacy violations that break the law – such as a peeping tom – have no such protection. The right of privacy also ceases when the person dies.

The Right of Publicity

In California – and many other states – a person, famous or not, has a “Right of Publicity” – the right to control how his or her identity can be exploited for commercial purposes. Many celebrities make more from endorsements than their actual jobs. Unlike the right of privacy, the right of publicity survives the death of the individual (think ‘Elvis’). This right extends to currently non-famous people. In California, a kindergarten teacher was awarded over $15 million when his image was used on a Taster’s Choice coffee label without his permission. This right extends to their voice, nickname, likeness, and even phrases or property that are closely associated with that person (e.g., William Shatner’s toupee, or Johnny Carson’s “Here’s Jonny!” line).

Defamation

Defamation is when a person is portrayed falsely or maliciously in a way that damages their reputation. This may be done by implication, such as showing a person passing an abortion clinic, when they have never patronized one. You should note that the key here is falsely portraying them. The truth usually makes for an excellent defense.

Property Owner’s Rights

While property, per se, does not have a right to privacy or publicity, people and corporations who may be closely associated with buildings, statues, monuments, costumes,  etc. do have rights and may claim harm (e.g., financial loss) through the results of your photography. It is worth noting that public property has no such rights, although you might run into difficulties trying to take the picture due to security issues. Also, if there is a work of art that in attached to or adjacent to the property, then you might run into a copyright issue with the artwork (such as a mural, painting, or statue). Some examples which could cause issues would include:

  • Automobile logos
  • Disney characters (drawn or costumes)
  • The Hollywood sign
  • Amusement parks (e.g., Disneyland, Busch Gardens, Universal Studios)
  • Barbie dolls
  • Oscar, Emmy or Grammy awards
  • Eiffel Tower at night (the lighting design is copyrighted)
  • Olympic athletes, logo, or torch
  • Clowns (their costumes are trademarked or copyrighted)

Releases

A release is a signed document that grants the photographer the use of the image (either person or property) and protects you from future lawsuits for defamation or invasion of privacy. The uses to which the photo may be put should be clearly spelled out.  In this digital age, such a release should also grant permission for the digital manipulation of the image. A release is not necessary if you are not using the photo for commercial purposes. You also do not need a release for artistic purposes, unless the photo would somehow defame the subject, assuming the subject is of legal age. You need a release if the photo will be used for marketing or advertising where the subject implies an endorsement of the product.

Candid photos fall under several broad categories:

Fine Art

Exhibiting and selling your images as Fine Art does not require a release. Most non-commercial, non-journalistic photography would fall into this category. Your picture may be considered fine art due to your ‘artistry’ in capturing the image. However, if you create posters to advertise your work, then that is considered to be commercial use and does require a release.

Editorial Use

Any photo taken in a public place or is of public interest (i.e., ‘news’) does not require a release (there is no expectation of privacy). No release is required if you sell the images for journalistic, illustrative, or editorial use. Use in a corporate magazine would require a release since it could be considered as advertising, but photos of a wedding would usually be considered journalistic use. You should be cautious about photos that portray or imply a negative connotation for the subject. Although protected, it could generate a lawsuit that you might win at great cost.

Commercial Use

Anything that involves commercial use or endorsement requires a release. This includes creating flyers or displaying images in your place of business which effectively advertises your work. It is interesting to note that you can post images on your website without a release.

 How bad could it be?

According to an article on Nov 22, 1999 in the New York Observer, photographer Peter Beard was threatened with a lawsuit over a photo he took over a decade earlier. In 1987, he took a picture of a 17-year-old girl (not of legal age) near Lake Rudolph in Kenya. By 1997, this girl had moved to Los Angeles where she was waiting tables and looking for modelling work. A friend in New York called and told her of the photo that was on display in a SoHo gallery, selling for thousands of dollars. She hired a lawyer and demanded $50,000 plus 15% of the photo sales. Since the lawsuit was resolved out of court, there is no information on how it actually turned out. This is a case where the image could be considered Fine Art, but involved a minor where no release was obtained. Furthermore, whether the lawsuit had merit or not, it probably would not have been brought if the image was being sold for $20 instead of several thousands of dollars.

A Checklist for Requiring a Release

According to the American Society of Media Photographers, here is a checklist for when you require a model release (note that virtually the same requirements apply to private venues):

  • Can you identify the subject as a unique person? If a person is not the focus of the image, e.g., a person in a crowd, then they are usually not considered to be a subject, but if the photo is used as an advertisement, then you should have a release for every recognizable person.
    No – No release is required.
    Yes – Continue to the next question.
  • Is the photograph going to be used in an advertisement? Does the photo portray the subject as advocating or expressing an opinion regarding any product, group, or idea? E.g. a photo of someone at a religious site might be construed as their belonging or advocating that religion.
    Yes – A release is required.
    No – Continue to the next question
  • Is the photo going to be used for a commercial business purpose, such as a brochure, calendar, poster, cereal box, etc.?
    Yes – A release is required.
    No – No release is required

It should be noted that the sale of a photo (i.e., receiving money for a photograph) is never an issue as to whether a release is required or not. The person who publishes the photo (in a book, magazine, online, etc.) for public viewing is the person who needs a release if the publication implies any kind of endorsement or association by the subject. Also note that there is no differentiation between adults or minors (except that minors need their parent or guardian to legally sign the consent form).

General Guidelines

  • If you are in a public place, then anything you take a picture of is legal as there is no expectation of privacy (excluding situations where people have a reasonable expectation of privacy, such as a changing room, or when they are shielded from public view). This also applies to any private venue where there is no reasonable expectation of privacy, such as an amusement park, zoo, golf course, church or country club.
  • If the photo does not portray the person as endorsing any recognizable product, religion, or business or idea (such as attending  a gay pride parade or walking by an abortion clinic), and so long as the photo is not used in such a way or with any text that makes such implication, then you don’t need a release.
  • If the photo could possibly harm any subject – either financially or in reputation – then you should get a release.
  • If the photo is going to be used in any commercial enterprise, e.g., on a coffee mug, cereal box, calendar, brochure, poster, etc., to the general public, then you should have a release. Sales of event photos or videos to the participants is not considered to be the general public, but putting the photos or video up for sale on Amazon is.
  • The extent to which a copyrighted work (such as a painting or sculpture) is depicted in your photo determines whether you need a release. If your photo “harm” the copyright holder by depriving them of a potential sale due to your photo, then you should have a release.
  • People who are part of a scene do not need to sign a release, even if they are recognizable, and even if the use is commercial (advertising or brochures) unless they appear to be advocates or sponsors. For example, a wide-angle shot of people dining (unstaged) with no particular emphasis on anyone does not require any release, even for commercial use.
  • The display of photos as a portfolio (e.g., photographer’s website) is not considered to be an advertisement or commercial use.
  • If the number of sales is small and the amount of money involved is not huge, then it is not usually worth the enormous expense of a lawsuit. At the worst, you might get a “cease and desist” order.
  • Nobody has the right to take away your equipment or force you to erase your photos without a court order.
  • Only an attorney who is familiar with the laws in your state can give you a reliable opinion. Web pages (including this one) may obtain information that does not apply in your state or is inaccurate or out of date.
  • Selling your photo to an individual is almost always legal. It is what they do with that photo that might require a release.
  • If you do get a signed release, you must offer some sort of compensation for the contract to be binding. A cheap an easy thing to do would be to send them a copy of the photo.
  • If you get a release, you must specify to what purpose the photo can be put. A release for publication in a newspaper does not give you a release to use the photo in an advertising brochure.
  • Never express an opinion on whether or not someone needs a release to publish a photo. You do not want to lose a sale by giving wrong advice, nor do you want someone to be able to come back to you for misrepresenting the need for a release.
  • Ironically, the more orchestrated a photo is, the more likely you are to need a release. If a person is acting in their own free will (i.e., not orchestrated) in a public setting then their actions are public and considered to be representative of themselves and so have no right of privacy. If they are directed to pose or act in some manner, then they are no longer behaving naturally and their orchestrated image may be subject to an interpretation that is not an accurate representation of the individual. In other words, if you tell them what to do then they cannot be held responsible for how they appear. In this case you are more likely to need a release.

Key Points

The following key points should be considered regarding privacy and when a release is required.

  • Generally, what can be seen from public view can be photographed. Consent is required when the subject has a reasonable expectation of privacy.
  • Avoid recognizable people when illustrating negative stories (even in public). For this you should always have a release (assuming they would grant one).
  • When required, consent must be obtained from the authorized person (principal party, owner, or copyright holder) who is of legal age.
  • Granted consent must be specific. Consent for entry to a building is not the same as consent to photograph.
  • Consent for access from police does not give general consent (i.e., photographing a copyrighted work in a disaster area)
  • Public figures and those who are involved in events of public interest have less right to privacy than private individuals.
  • Hidden cameras may involve criminal prosecution.
  • Just taking a photo (without publishing it) may be considered a violation of privacy if the subject has a reasonable expectation of privacy in the context (a secluded area, dressing rooms, etc.).
  • Privacy laws vary greatly from state to state.

Summary

If you want to sell a photo, get a release for:

  • Any photo used for commercial purposes – including ads, flyers, labels, marketing, or endorsements
  • Any photo that includes a copyrighted work of art – murals, paintings, statues, designs
  • Any photo taken in a private location, including theme parks and other pay-for-entry private venues

No release necessary for:

  • Photos taken legally in a public place or of public property
  • Fine Art, Educational, Editorial, Journalistic, or other photos of public interest. For many photographers, this is the majority of their work. If you take photos of a public event you can reasonably expect to sell those photos, except for commercial purposes as noted.

To be safe, get a release for:

  • Photos in private venues. If you are taking photos of a private event, it might be wise to get a release for any photos taken at that event. This includes churches, hotels, and private meeting halls.
  • Any photo that you believe might generate significant income.

A couple of things to keep in mind are:

  1. Anyone can file a lawsuit over anything. You can be sued because someone doesn’t like your hair color. Having a release does not guarantee that you won’t get sued. It only guarantees that you will win, assuming the release covers the subject and use in question.
  2. It is expensive to sue. If you are below the radar then you are probably pretty safe. You probably don’t have to worry about an incidental copyrighted aspect of your image (e.g., MacDonald’s arches in the background). Also, if you aren’t making a ton of money from the image it probably isn’t worth the expense to sue you. In such cases you might receive a “cease and desist” order at the most.

Examples

  • A photograph of a person was taken without their knowledge in a public place and exhibited as 4-by-5-foot prints. As art, this is legal.
  • Posting photos on a website for the purpose of selling or licensing does not require a release, so long as you don’t portray the person as being associated with you or advocating your business.
  • Selling a photo to a newspaper does not require a release. The newspaper may require the release in order to publish the photo.
  • A photo of two people clinking glasses and looking at the camera requires a release to use the image commercially. A wide-angle shot of many diners eating does not require any release for commercial use.

 Useful Web Sites:

These sites are major sources of information:

Leave a Reply

Your email address will not be published.