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gatherings of people - does a photographer need people permission for commercial purposes



 
 
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  #1  
Old September 28th 03, 01:25 PM
Bluesea
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Default gatherings of people - does a photographer need people permission for commercial purposes


"J C" wrote in message
...
On Mon, 15 Sep 2003 15:06:42 -0500, "Dreamer"
wrote:


"Randyman" wrote in message
...
I understand the single model concept of legal permission for

commercial
purposes, but when a photographer takes a photo of an example such as a
crowd or small group of people at the zoo does he or she need

permission
(written) from all the people recognizable before that photo could be

used
in an exhibit or put in a newspaper? Thanks --


Newspaper, no - that's editorial (reportage) and covered by the First
Amendment in the US at least.


Not always. There was a case about a decade and a half ago that went
like this.

New York Magazine was running a story on the rise of black in
executive positions.

As a cover photo they ran a shot of a black man in a business suit
standing on a New York street corner. He did not know he was being
photographed.

The man sued and won. The major point being that he did not agree to
having his image appended to editorial content.


But, a cover photo isn't editorial. It's to sell the magazine which makes it
commercial.


--
~~Bluesea~~
Spam is great in musubi but not in email.
Please take out the trash before sending a direct reply.


  #2  
Old September 29th 03, 06:20 PM
J C
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Default gatherings of people - does a photographer need people permission for commercial purposes

On Sun, 28 Sep 2003 12:25:06 GMT, "Bluesea"
wrote:



But, a cover photo isn't editorial. It's to sell the magazine which makes it
commercial.


I would say that it would really depend. Surely you can think of a
case where a cover photo would be editorial. I know I can.


-- JC
  #3  
Old September 29th 03, 10:41 PM
Mxsmanic
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Default gatherings of people - does a photographer need people permission for commercial purposes

J C writes:

I would say that it would really depend. Surely you can think of a
case where a cover photo would be editorial. I know I can.


National Geographic certainly played that card with its photo of that
young girl in Afghanistan.

--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
  #4  
Old October 3rd 03, 09:19 AM
Lewis Lang
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Default gatherings of people - does a photographer need people permission for commercial purposes

Subject: gatherings of people - does a photographer need people permission
for commercial purposes
From: (Michael Benveniste)
Date: Tue, Sep 16, 2003 12:47 PM
Message-id:

"Randyman" wrote in message

...
I understand the single model concept of legal permission for commercial
purposes, but when a photographer takes a photo of an example such as

a
crowd or small group of people at the zoo does he or she need permission
(written) from all the people recognizable before that photo could be

used
in an exhibit or put in a newspaper? Thanks --


"It depends," of course! In this situation, it depends on where you
take the photo and the purpose of the photograph.

Privacy laws change from country to country, and within the U.S. from
state to state. For example, California has codified the rules in
Civil Code Section 3344. See:
http://www.leginfo.ca.gov/cgi-bin/ca...dy=3344&hits=1
http://tinyurl.com/niz9

The California law state that when someone is recognizable, you need
a release except when the image is used in connection with news,
sports, political or public affairs. The laws in other states (and
the U.K.) follow the same pattern, but vary in terms of what's
considered newsworthy, the assignability of such rights, and whether
the right terminates with death of the subject.

This is not a legal opinion.

--
Michael Benveniste --
Spam and UCE professionally evaluated for $250. Use this email
address only to submit mail for evaluation.


Thanks Michael:

That list of exceptions seems a bit narrow or perhaps not well defined to me.
What exactly is the definition of "public affairs"? Would a gallery show or a
book of photos be a "public affair" (informational?/educational) usage?
Regardless of what California/other states claim(s), people in public
are/should be fair game for non-commercial usage - otherwise wouldn't
California be infringing on first ammendment rights?

Lewis

Check out my photos at "LEWISVISION":

http://members.aol.com/Lewisvisn/home.htm

Remove "nospam" to reply
  #5  
Old October 4th 03, 01:23 AM
Michael Benveniste
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Default gatherings of people - does a photographer need people permission for commercial purposes

On 03 Oct 2003 08:19:00 GMT, ospam (Lewis Lang)
wrote:

Civil Code Section 3344. See:
http://www.leginfo.ca.gov/cgi-bin/ca...dy=3344&hits=1
http://tinyurl.com/niz9


That list of exceptions seems a bit narrow or perhaps not well defined to me.
What exactly is the definition of "public affairs"?


You ask some good questions. I wish the answers I had were as good.

My reading is that California courts try to balance the amount of
intrusion with the interest of the public in legitimate subject
matter. One oft-cited case is Dora v. Frontline Video Inc., 15 Cal.
App. 4th 536 (1993). Mickey Dora was a surfer in the 1950's. In
upholding the use of period film in a surfing documentary the court
stated:
Matters in the public interest are not "restricted to current
events; magazines and books, radio and television may
legitimately inform and entertain the public with the
reproduction of past events, travelogues and biographies.
and
Although any one of them [the surfers] as individuals may not
have had a particular influence on our time, as a group they had
great impact. This is the point of the program, and it seems a
fair comment on real life events "which have caught the popular
imagination."
In other case, the courts denied a plaintiff compensation for a
segment of "Cops" where he was filmed telling the cops he was looking
to buy some drugs when his motorcycle got stolen. Not well defined?
You bet, and worse, the definition varies among jurisdictions and
judges within a jurisdiction.

Would a gallery show or a book of photos be a "public affair"
(informational?/educational) usage?


It depends on the subject matter of the show or book. A
collection of candids shot at Logan Airport on an ordinary day might
not rise to the level necessary. A collection of candids shot at
Logan Airport the morning of September 11th, 2001 would certainly make
the grade.

Regardless of what California/other states claim(s), people in public
are/should be fair game for non-commercial usage - otherwise wouldn't
California be infringing on first ammendment rights?


There are two sets of rights involved. Neither is absolute. A
photographer has certain rights under the 1st and 14th Amendments.
The U.S. Supreme Court has interpreted the 1st, 5th, and 14th
amendments to grant certain privacy rights to subjects of the photos.
Lack of commercial use is a defense to a section 3344 action or a
common law appropriation of image and likeness, but it's not a defense
for the other privacy torts. Being in "public" obviously limits one's
reasonable expectation of privacy, and if you're a politician or
celebrity, the expection is further reduced.

But Jackie Onassis would have gotten her injunction against Galella
even if he never sold a shot, based on the tort of intrusion.

It's a complex subject. Entertainment law is a specialty in its own
right, and for questions about specific situations you really should
ask for professional legal advice.

--
Michael Benveniste --
Spam and UCE professionally evaluated for $250. Use this email
address only to submit mail for evaluation.


--
Michael Benveniste --

Spam and UCE professionally evaluated for $250. Use this email
address only to submit mail for evaluation.
  #6  
Old October 4th 03, 09:43 AM
Lewis Lang
external usenet poster
 
Posts: n/a
Default gatherings of people - does a photographer need people permission for commercial purposes

Subject: gatherings of people - does a photographer need people permission
for commercial purposes
From: Michael Benveniste
Date: Sat, Oct 4, 2003 12:23 AM
Message-id:

On 03 Oct 2003 08:19:00 GMT,
ospam (Lewis Lang)
wrote:

Civil Code Section 3344. See:
http://www.leginfo.ca.gov/cgi-bin/ca...dy=3344&hits=1
http://tinyurl.com/niz9


That list of exceptions seems a bit narrow or perhaps not well defined

to me.
What exactly is the definition of "public affairs"?


You ask some good questions. I wish the answers I had were as good.

My reading is that California courts try to balance the amount of
intrusion with the interest of the public in legitimate subject
matter. One oft-cited case is Dora v. Frontline Video Inc., 15 Cal.
App. 4th 536 (1993). Mickey Dora was a surfer in the 1950's. In
upholding the use of period film in a surfing documentary the court
stated:
Matters in the public interest are not "restricted to current
events; magazines and books, radio and television may
legitimately inform and entertain the public with the
reproduction of past events, travelogues and biographies.
and
Although any one of them [the surfers] as individuals may not
have had a particular influence on our time, as a group they had
great impact. This is the point of the program, and it seems a
fair comment on real life events "which have caught the popular
imagination."
In other case, the courts denied a plaintiff compensation for a
segment of "Cops" where he was filmed telling the cops he was looking
to buy some drugs when his motorcycle got stolen. Not well defined?
You bet, and worse, the definition varies among jurisdictions and
judges within a jurisdiction.

Would a gallery show or a book of photos be a "public affair"
(informational?/educational) usage?


It depends on the subject matter of the show or book. A
collection of candids shot at Logan Airport on an ordinary day might
not rise to the level necessary. A collection of candids shot at
Logan Airport the morning of September 11th, 2001 would certainly make
the grade.

Regardless of what California/other states claim(s), people in public
are/should be fair game for non-commercial usage - otherwise wouldn't
California be infringing on first ammendment rights?


There are two sets of rights involved. Neither is absolute. A
photographer has certain rights under the 1st and 14th Amendments.
The U.S. Supreme Court has interpreted the 1st, 5th, and 14th
amendments to grant certain privacy rights to subjects of the photos.
Lack of commercial use is a defense to a section 3344 action or a
common law appropriation of image and likeness, but it's not a defense
for the other privacy torts. Being in "public" obviously limits one's
reasonable expectation of privacy, and if you're a politician or
celebrity, the expection is further reduced.

But Jackie Onassis would have gotten her injunction against Galella
even if he never sold a shot, based on the tort of intrusion.

It's a complex subject. Entertainment law is a specialty in its own
right, and for questions about specific situations you really should
ask for professional legal advice.

--
Michael Benveniste


SNIP

Thanks Mike for your detailed answers. Even with case examples it does seem a
bit of a legal "Wild Wild West" or at least some lines/areas seem a bit gray.

Thanks again,

Regards,

Lewis

Check out my photos at "LEWISVISION":

http://members.aol.com/Lewisvisn/home.htm

Remove "nospam" to reply
  #7  
Old October 9th 03, 08:17 PM
Chris Maness
external usenet poster
 
Posts: n/a
Default gatherings of people - does a photographer need people permission for commercial purposes

I am a photographer in California. What about using candids/wedding
photos in my portfolios without model releases. I have read that this
is OK. Is California an exeption in this case?

Chris M.


Michael Benveniste wrote in message . ..
On 03 Oct 2003 08:19:00 GMT, ospam (Lewis Lang)
wrote:

Civil Code Section 3344. See:
http://www.leginfo.ca.gov/cgi-bin/ca...dy=3344&hits=1
http://tinyurl.com/niz9


That list of exceptions seems a bit narrow or perhaps not well defined to me.
What exactly is the definition of "public affairs"?


You ask some good questions. I wish the answers I had were as good.

My reading is that California courts try to balance the amount of
intrusion with the interest of the public in legitimate subject
matter. One oft-cited case is Dora v. Frontline Video Inc., 15 Cal.
App. 4th 536 (1993). Mickey Dora was a surfer in the 1950's. In
upholding the use of period film in a surfing documentary the court
stated:
Matters in the public interest are not "restricted to current
events; magazines and books, radio and television may
legitimately inform and entertain the public with the
reproduction of past events, travelogues and biographies.
and
Although any one of them [the surfers] as individuals may not
have had a particular influence on our time, as a group they had
great impact. This is the point of the program, and it seems a
fair comment on real life events "which have caught the popular
imagination."
In other case, the courts denied a plaintiff compensation for a
segment of "Cops" where he was filmed telling the cops he was looking
to buy some drugs when his motorcycle got stolen. Not well defined?
You bet, and worse, the definition varies among jurisdictions and
judges within a jurisdiction.

Would a gallery show or a book of photos be a "public affair"
(informational?/educational) usage?


It depends on the subject matter of the show or book. A
collection of candids shot at Logan Airport on an ordinary day might
not rise to the level necessary. A collection of candids shot at
Logan Airport the morning of September 11th, 2001 would certainly make
the grade.

Regardless of what California/other states claim(s), people in public
are/should be fair game for non-commercial usage - otherwise wouldn't
California be infringing on first ammendment rights?


There are two sets of rights involved. Neither is absolute. A
photographer has certain rights under the 1st and 14th Amendments.
The U.S. Supreme Court has interpreted the 1st, 5th, and 14th
amendments to grant certain privacy rights to subjects of the photos.
Lack of commercial use is a defense to a section 3344 action or a
common law appropriation of image and likeness, but it's not a defense
for the other privacy torts. Being in "public" obviously limits one's
reasonable expectation of privacy, and if you're a politician or
celebrity, the expection is further reduced.

But Jackie Onassis would have gotten her injunction against Galella
even if he never sold a shot, based on the tort of intrusion.

It's a complex subject. Entertainment law is a specialty in its own
right, and for questions about specific situations you really should
ask for professional legal advice.

--
Michael Benveniste --
Spam and UCE professionally evaluated for $250. Use this email
address only to submit mail for evaluation.

  #8  
Old October 6th 03, 12:07 PM
external usenet poster
 
Posts: n/a
Default gatherings of people - does a photographer need people permission for commercial purposes


What are commercial purposes though?

Surely anything that appears in magazine/newspaper/website/television is a
commercial use. It may be on the News, but the TV station doesn't make a
news program for fun - it makes it for a profit. It's exactly the same with
newspapers and magazines.

The only non-commercial use therefore, is if you publish in a free to view
medium with no advertisements. This just isn't going to happen, unless you
print a photo just for yourself to hang on your own wall.



  #9  
Old October 6th 03, 01:11 PM
Mxsmanic
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Posts: n/a
Default gatherings of people - does a photographer need people permission for commercial purposes

Enter Your Full Name writes:

What are commercial purposes though?


Advertising, product endorsement, works of fiction (movies, TV,
whatever), anything that presents a person's image as being anything
other than what it is (i.e., showing a person's face and saying "this
could be a crook"), and so on.

Surely anything that appears in magazine/newspaper/website/
television is a commercial use.


No. Some uses are just for purposes of information.

It may be on the News, but the TV station doesn't make a
news program for fun - it makes it for a profit.


But it makes its profit by collecting and presenting news, not by using
the likenesses of specific individuals for their own value. Anyone who
robs a bank may be pictured on TV, but since the news does that for
anyone, it's not a commercial use.

The only non-commercial use therefore, is if you publish in a free to view
medium with no advertisements.


No. News media, textbooks, scholarly works, works of non-fiction, and
so on are generally considered non-commercial. Motion pictures (other
than straight documentaries), works of fiction, advertisements,
television commercials, and so on are generally considered commercial.

--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
  #10  
Old October 7th 03, 10:23 PM
Lewis Lang
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Posts: n/a
Default gatherings of people - does a photographer need people permission for commercial purposes

Subject: gatherings of people - does a photographer need people permission
for commercial purposes
From: " EnterYour Full Name "
Date: Mon, Oct 6, 2003 11:07 AM
Message-id:


What are commercial purposes though?


When something (in this case, a photograph) is used to sell or promote a
product or a service.

Surely anything that appears in magazine/newspaper/website/television is
a
commercial use.


Surely not...

It may be on the News, but the TV station doesn't make a
news program for fun - it makes it for a profit. It's exactly the same with
newspapers and magazines.


If it appears in the news program to illustrate a story/for
informational/educational purposes then it is non-commercial - if it appears in
a commercial during that news broadcast's commercial break in order to sell a
product or a service it is being commercially used. Therein lies the
difference. Same thing goes for a photo that is used to illustrate the subject
of an article (editorial usage) while the same photo used in the same magazine
as an ad to seel toothpaste or life insurance (or whatever) would be a
commercial usage. Its a very simple concept.

The only non-commercial use therefore, is if you publish in a free to view
medium with no advertisements.


Not so, see above.

This just isn't going to happen, unless you
print a photo just for yourself to hang on your own wall.


See above.

Lewis

Check out my photos at "LEWISVISION":

http://members.aol.com/Lewisvisn/home.htm

Remove "nospam" to reply
 




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