On 2007-12-11 01:59:53 -0800, Bryan Olson said:

IANAL, but neither is the author of the of article cited in the
original post, so...

C J Campbell wrote:
Not4wood said:

Sure, but if you:

A- sell a shot of someone without a Model Release, that person who you
photographed can sue you and the publication for using there image without
consent. Probably they can then retire and buy an Island in the Caribbean.

Not if the photo is for editorial use. Only commercial usage needs a
model release.

The major distinction there is editorial versus advertising
context. People publish and sell photos of celebrities without
their permission all the time. Using a person's image in an
advertisement generally requires their permission.


In the US, you can take pictures of anyone in a public place or if they
can be seen from a public place. If they hit you with a bat you can sue
them for assault. No one has a right to privacy in a public area. If
you are on a cruise ship or with a tour group, for example, people
cannot stop you from taking their picture.

A cruise ship? Those are invariably private property. Worse,
you'd have to know what law applies given where it is and
what flag it flies.

A public place does not mean public property. Public places include
cruise ships, restaurants, bookies, or any other place that is open to
the public, whether it is privately owned or not. In point of fact,
travel magazines do take editorial photographs of people on cruise
ships all the time. They do not get model releases from everyone who
appears in their pictures. However, such model releases are wise if you
think you might want to use the photo for advertising purposes later.



Neither can they stop you from taking their picture when they are
standing in a window. There is no reasonable expectation of privacy,
for example, for someone who is visible from the street eating
spaghetti in a restaurant,

Maliciously holding people who are not "public figures" up
to public scorn or ridicule can be actionable, even if all
editorial content is true and all images unaltered. The bar
for plaintiffs in such cases is high, but if when you aim your
camera into the restaurant, you happen to catch an ordinary
pasta-lover in an embarrassing but not uncommon noodle-drool,
don't publicize the image as "duface of the year".

In a case where a fan stood up during a ball game and was photographed
with his fly open, the fan sued the newspaper where his photo appeared.
The court ruled that the newspaper had a right to run the picture and
threw the case out. The fan had no right to an expectation of privacy
even if the picture subjected him to public scorn and ridicule.

In fact, it is very difficult in the US to sue for public scorn and
ridicule. If you do stupid or embarrassing things in public you cannot
sue people for taking your picture. Certainly, noodle-drool would not
be enough to be considered malicious scorn or ridicule. The only cases
where malicious scorn and ridicule have been used successfully to sue
photographers were cases where people were photographed by upskirting
knotheads and the like. The test is not 'malicious scorn or ridicule,'
as you say, but intentional infliction of emotional distress, which
must be so severe that an ordinary person cannot be expected to endure
it. That is far beyond ordinary public embarrassment such as noodle
drool. Noodle drool is not malicious scorn and ridicule. Printing a
caption that says "Dufus of the year" is not malicious scorn and
ridicule. Giving him the head of a gorilla is malicious scorn and
ridicule. Turning him green is malicious scorn and ridicule. Making the
spaghetti look like worms is malicious scorn and ridicule. But I defy
you to cite one case where someone won on the basis of malicious scorn
and ridicule for something like noodle drool.

Stalking people or following them around snapping their picture in
order to harass them is not only likely to get you sued, it could land
you in jail. Many states have anti-stalking and anti-harassment laws.
Texas has a law that prohibits you taking a photo of someone if the
intent is to arouse somebody sexually. Such a law is probably
unenforceable because it is so vague and it requires that someone make
a determination of what the intent of the photographer was. California
has a law that says that you may not illegally trespass on private
property or assault someone in order to invade others' privacy. Such a
law clearly spells out what the illegal activity is and it would be
very difficult for a photographer to explain why he assaulted a guard
and snuck into a mansion in order to photograph Nicole Kidman in bed.
But a pilot who photographs Barbara Streisand's house from the air has
a right to do so. Barbara Streisand does not own the air space above
her home and the pilot was not using the photo for any commercial
purpose. His interest was in studying the shoreline along Malibu.
Barbara cannot sue Google Earth, either, for the same reason.

People conducting illegal activities or who are betting at a local
bookie can be photographed and have no right to sue as a consequence.
If you want to photograph the local drug dealer conducting business
that is your right (but you probably will need a bodyguard) no matter
how much scorn or ridicule is heaped upon him as a result.

Photographs of people caught in moments of extreme tragedy or
embarrassment sometimes win Pulitzer prizes. Couples caressing in
public markets, photographs of women wrapped only in a towel fleeing an
apartment fire, and the burned corpses of teenagers killed in auto
accidents all can cause severe distress, be embarrassing, or even break
up a marriage, but the people who sued the photographers or publishers
in these cases all lost.

Security cameras regularly record the activities of people in their
private workplaces, living quarters, as they drive, where they shop,
and practically everywhere else they go. It does not matter if you are
with your mistress when you pick up your hotel room key and you would
rather not have your wife find out about it. The security camera behind
the desk is going to photograph you anyway. And if some newsworthy
event happens, such as a robbery at the next counter, that security
camera's photos might well appear in the paper the next day. That said,
a hotel that regularly photographs its patrons entering the lobby in
the company of prostitutes and sends the pictures to the paper is
probably going to lose a considerable amount of business. But unless
the hotel wrongly implies that the individuals in the picture are
soliciting prostitutes, then it cannot be sued for malicious scorn and
mischief.

An example of this was a man who was photographed picking up his
teenage granddaughter in a car. The photograph appeared in an article
on teenage prostitution. The man and his granddaughter sued for
invasion of privacy, emotional stress, and being held up for scorn and
ridicule. They lost. The court held that the area was known for teenage
prostitution and that given the location, the time of night, and the
way the granddaughter was dressed it was reasonable for the
photographer to assume that this was an instance of a man picking up a
teenager for the purpose of prostitution. After all, a photographer
cannot be expected to walk up in such a situation and ask if the people
involved are doing something other than what they appear to be doing.
If it had been the middle of the day at a prep school and the girl had
been wearing a school uniform, they might have had a case.


[...]
Courts are very protective of freedom of expression and will limit it
only when absolutely necessary to preserve public order.

Right. When the expression is important to you, refraining
for fear of legal consequences is unwarranted, and, worse,
cowardly.

If you want to stand up for the right for the sake of the
right, without a plausible argument for the importance of
the particular expression at issue, that's good too. Just do
it for someone else's case, not your own. Robert Zicari and
Paul F. Little are not First Amendment champions; they are
scum. Their cases won us a little bit of freedom because
better people stood up.


--
Waddling Eagle
World Famous Flight Instructor