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



 
 
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  #11  
Old October 4th 03, 03:54 AM
Mxsmanic
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Default gatherings of people - does a photographer need people permission for commercial purposes

Bluesea writes:

We're talking about the same Afghan girl,
http://magma.nationalgeographic.com/ngm/afghangirl, right?


Yes. The one who looks 100 years older than she really is today.

In which case, "No." According to NG, it was taken in
the Nasir Bagh refugee camp in Pakistan.


My mistake. So, did they get a signed release when they took the photo?

Pro'lly because she was a refugee and not precisely situated to find out and
press her case?


So there is no need to respect the rights of someone without lawyers?

Then again, do the requirements about releases apply to
people there as much as they do to people in the U.S.
or Europe?


In the U.S., you obey U.S. laws. The publication occurred in the U.S.,
not in Pakistan or Afghanistan.

When the question of renumeration was raised, NG said she's
being taken care of now.


Twenty years later? I don't think that would go over very well in most
courtrooms. Besides, if she is being paid now, that's a tacit admission
that a release was required all along.

Yes, with good reason. As many times as I've seen it,
it still moves me.


It's a great photo. Too bad the model has been living in dirt for two
decades while National Geographic profited from it.

--
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  #12  
Old October 4th 03, 05:27 AM
Bluesea
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Default gatherings of people - does a photographer need people permission for commercial purposes


"Mxsmanic" wrote in message
...
Bluesea writes:

We're talking about the same Afghan girl,
http://magma.nationalgeographic.com/ngm/afghangirl, right?


Yes. The one who looks 100 years older than she really is today.


100? I'll go 10. To me, she looks like she's in her late 30's or early to
mid-40's.

In which case, "No." According to NG, it was taken in
the Nasir Bagh refugee camp in Pakistan.


My mistake. So, did they get a signed release when they took the photo?


I don't know.

Pro'lly because she was a refugee and not precisely situated to find out

and
press her case?


So there is no need to respect the rights of someone without lawyers?


I was speculating on the situation, not on the need to respect others's
privacy w/ or w/o attorneys. War situations, in particular, make people
forgetful of otherwise ordinary things and I don't know under what pressures
McCully was working at the time.

Then again, do the requirements about releases apply to
people there as much as they do to people in the U.S.
or Europe?


In the U.S., you obey U.S. laws. The publication occurred in the U.S.,
not in Pakistan or Afghanistan.


You have me at a disadvantage since I know very little about publishing
photos of people in other countries, much less refugee camps. I would have
thought that it depended on the laws of the subject's residence since it's
the subject's privacy that's at stake. She had no idea that her face is
famous. How was her privacy violated when no one knew who she was or where
she was?

When the question of renumeration was raised, NG said she's
being taken care of now.


Twenty years later? I don't think that would go over very well in most
courtrooms. Besides, if she is being paid now, that's a tacit admission
that a release was required all along.


The website didn't say she's being paid, just that she's being taken care
of. They did provide medical treatment for the ill members of her family as
soon as they could. She didn't want anything for herself, just her family.

Besides, McCully and the NG have been looking for her all these years. Where
would NG have sent the checks in the meantime?

Yes, with good reason. As many times as I've seen it,
it still moves me.


It's a great photo. Too bad the model has been living in dirt for two
decades while National Geographic profited from it.


From our perspective, yes. From her perspective, maybe not. We need to
remember that not everyone is materialistic. Some enjoy a simple life and
I've known a few, myself. I may wonder if they're just being weird or on a
tangent or what, moving off to the boonies, but it's their lives, their
choices. The NG website says that she doesn't want further contact and that
her family has moved her to a remote location. Since she's never known
another lifestyle, that doesn't seem odd to me.

We should also consider how strongly people's religions can mold their lives
and remember that she's a Muslim who apparently doesn't have a problem with
purdah.

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


  #13  
Old October 4th 03, 05:32 AM
Bluesea
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Default gatherings of people - does a photographer need people permission for commercial purposes


"Bluesea" wrote in message
...

I was speculating on the situation, not on the need to respect others's
privacy w/ or w/o attorneys. War situations, in particular, make people
forgetful of otherwise ordinary things and I don't know under what

pressures
McCully was working at the time.

snip
Besides, McCully and the NG have been looking for her all these years.

Where
would NG have sent the checks in the meantime?


Not McCully. It's McCurry. Steve McCurry.


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


  #14  
Old October 4th 03, 09:43 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: 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
  #15  
Old October 4th 03, 10:41 AM
Mxsmanic
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Default gatherings of people - does a photographer need people permission for commercial purposes

Bluesea writes:

100? I'll go 10. To me, she looks like she's in her late 30's or early to
mid-40's.


She either had a bad case of acne after puberty, or she survived
smallpox.

I was speculating on the situation, not on the need to respect others's
privacy w/ or w/o attorneys. War situations, in particular, make people
forgetful of otherwise ordinary things and I don't know under what pressures
McCully was working at the time.


I doubt that would help in court, especially after profiting from the
photo for twenty years.

You have me at a disadvantage since I know very little about publishing
photos of people in other countries, much less refugee camps. I would have
thought that it depended on the laws of the subject's residence since it's
the subject's privacy that's at stake. She had no idea that her face is
famous. How was her privacy violated when no one knew who she was or where
she was?


The law doesn't address that point. Additionally, it's not a privacy
issue in this case. The issue is using someone's image for commercial
purposes without a release.

In the U.S. (but not necessarily in other countries), you can use
someone's image for editorial or informational purposes without a
release. However, NG went _far_ beyond that in this case, using this
girl's image over and over to promote the magazine. That made it
commercial use, and commercial use requires a release.

In theory, this woman could sue in the U.S. on this basis. National
Geographic probably gambled (successfully) that she would not.

The website didn't say she's being paid, just that she's being taken care
of.


She is receiving "valuable compensation," in other words.

They did provide medical treatment for the ill members of her family as
soon as they could. She didn't want anything for herself, just her family.


Where she lives, what she wants is irrelevant, as only her husband has
the authority to decide that.

Besides, McCully and the NG have been looking for her
all these years.


He had her in front of him when he took the picture.

Where would NG have sent the checks in the meantime?


NG should not have used the photo commercially until it found her.

From our perspective, yes. From her perspective, maybe not. We need to
remember that not everyone is materialistic.


So it's okay to do without a release if you believe the model is not
materialistic?

We should also consider how strongly people's religions can mold their lives
and remember that she's a Muslim who apparently doesn't have a problem with
purdah.


Still, a release is required for commercial use.

--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
  #16  
Old October 4th 03, 10:41 AM
Mxsmanic
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Default gatherings of people - does a photographer need people permission for commercial purposes

Lewis Lang writes:

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.


Every instance of litigation in image rights is a roll of the dice (to a
lesser extent, this is true of all IP litigation). The only consistent
winners are the lawyers.

--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
  #17  
Old October 5th 03, 04:26 PM
Bruce MacNeil
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Default gatherings of people - does a photographer need people permission for commercial purposes


"Mxsmanic" wrote in message
...
Bluesea writes:

We're talking about the same Afghan girl,
http://magma.nationalgeographic.com/ngm/afghangirl, right?


Yes. The one who looks 100 years older than she really is today.

In which case, "No." According to NG, it was taken in
the Nasir Bagh refugee camp in Pakistan.


My mistake. So, did they get a signed release when they took the photo?



Steve mcCurry says - "Life is too short for model releases..."

he is right.

NG - being American - presses on with trite exploitation at light speed.


  #18  
Old October 5th 03, 04:58 PM
Mxsmanic
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Default gatherings of people - does a photographer need people permission for commercial purposes

Bruce MacNeil writes:

Steve mcCurry says - "Life is too short for model releases..."

he is right.


He has better lawyers than most photographers.

--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
  #19  
Old October 6th 03, 12:07 PM
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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.



  #20  
Old October 6th 03, 01:11 PM
Mxsmanic
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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.

--
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