New York State & Model release

I've been reading about NY having strict right to privacy laws. I'm trying to wrap my head around "commercial or trade" use. Let's say you have a client who elects NOT to sign a model release, however they want an online proofing gallery and sales without a password. It's on your website, so is it commercial? Does anyone have a link that clearly defines commercial or trade use in the eyes of NY state? Is posting on a business website by default considered commercial use? There is an exception for display of images as examples of work, but I believe that is intended for actual physical display in the studio.

No, it's not commercial usage...though it could be...make sense? Didn't think so...if you put the image up there and have wording with it that says they SUPPORT your photography it could be considered commercial, a stand alone image is not and never will be commercial usage. Proofing gallery is not commercial usage in any sense.

So an online gallery, although on a photography business web site, that is intended to show style, quality etc. Is not commercial use even though the intent of the website is to promote the photography business itself? Or, is it even further based on how the website setup?

I'm not being difficult, only trying to play devils advocate and understand why New York has this specific law if it appears to be no different than what's covered under the federal regulations.

I took photos for a family that organized a charity gold tournament for a deceased child. They wanted team photos, action shots, just stuff to document the day. The photos were uploaded to an online gallery so they could be viewed and order prints. Due to late coordination, I wasn't able to work the model release into the registration process. I will take the photos down if I'm in violation as I don't want the potential of any problems. I haven't had anyone complain, I simply don't want to be in violation.

States often have the same laws on the books as federal laws, usually they are referenced to the federal law but it all depends. Putting them up the way you have is not considered commercial, doesn't matter one bit that your site is a business site - it's been discussed on this board a few times before already. The intent of every news site out there is to make money, yet they are editorial as well. Commercial would be if you started selling products with these peoples images on it, or displayed the image in a way that makes it look like they support your photography business (i.e. advertisement or promotion).

Great! Thanks for the info!

Ask. An. Attorney.

The interwebs is a terrible place to get legal advice.

Or at least read a book by an attorney.

chakalakasp wrote in post #13182022
Ask. An. Attorney.

The interwebs is a terrible place to get legal advice.

Or at least read a book by an attorney.

You're right, but fortunately this is very common sense law when it comes to running a photography business or for those that work in PJ style photography, they have to know.

Buchinger wrote in post #13179590
I've been reading about NY having strict right to privacy laws. I'm trying to wrap my head around "commercial or trade" use. Let's say you have a client who elects NOT to sign a model release, however they want an online proofing gallery and sales without a password.

Why would you not avoid the problem by using a password protected gallery area? Clearly, if the client refused to sign the model release, they don't want their images openly published.

I don't know about NY state, but some other state laws explicitly define "commercial use" as promoting or soliciting for a product or service. If the gallery area is password-protected, that displays clear evidence that the purpose is not to promote your service--because the only people who can see the images are those who have already used your service. But if you put them on open display on a website that is in all other respects promoting your business, your intentions are certainly suspect.

Notice that the law also says that if the client objects to even physical display, it has to be taken down immediately. The problem with the Internet is that once it's "out there," you can't guarantee that you can take it down...it's still out on someone's server.

I have a great number of clients--particularly my higher-end clients--who have no problem at all with my use of their images for hardcopy displays around town because they do trust my tastes and ethics in that regard. But they don't want me to put their images on the Internet primarily because they know I have no real control of an image once it's on the Internet.

RDKirk wrote in post #13183959
I don't know about NY state, but some other state laws explicitly define "commercial use" as promoting or soliciting for a product or service. If the gallery area is password-protected, that displays clear evidence that the purpose is not to promote your service--because the only people who can see the images are those who have already used your service. But if you put them on open display on a website that is in all other respects promoting your business, your intentions are certainly suspect.

www.gettyimages.com
www.apimages.com
pictures.reuters.com

Three largest photo suppliers in the world with teams of lawyers are "suspect"? All three are photo services promoting their business displaying millions of images, some for commercial use and some for editorial - nothing about it is suspect in any sense.

As always when this non-debate comes up it all depends on how it's displayed...a simple display of an image is not suspect...showing off one's work to land more work is not suspect...now adding words to go along with the image to show support for or promote for the service is suspect, or using it in an advertisement is suspect...not a simply stand alone.

You need to read more about it.

Selling the image itself--which is what stock agencies do--is not a "commercial use." I've said that myself at least a dozen times in this forum. Selling the image itself has been ruled as a necessary corollary to the first amendment right to free expression--if the artist is prohibiting from earning a living through his art, that is the same thing as suppressing his artistic liberty.

Selling the image itself is not a solicitation to take more images for others, but using the image to gain more business is solicitation.

I had said, "But if you put them on open display on a website that is in all other respects promoting your business, your intentions are certainly suspect." I didn't say it was cut-and-dried if the gallery is not passworded, but that passwording the gallery removed all suspicion.

RDKirk wrote in post #13185064
You need to read more about it.

Selling the image itself--which is what stock agencies do--is not a "commercial use." I've said that myself at least a dozen times in this forum. Selling the image itself has been ruled as a necessary corollary to the first amendment right to free expression--if the artist is prohibiting from earning a living through his art, that is the same thing as suppressing his artistic liberty.

Selling the image itself is not a solicitation to take more images for others, but using the image to gain more business is solicitation.

I had said, "But if you put them on open display on a website that is in all other respects promoting your business, your intentions are certainly suspect." I didn't say it was cut-and-dried if the gallery is not passworded, but that passwording the gallery removed all suspicion.

Read it just fine - you even quoted yourself on the part I was talking about directly, though I'm not sure where you got anything about it being cut and dry as that was never stated or even hinted towards. All I did was address the word "suspicious", because there is absolutely zero suspicion at all on this, none, zilch, zero, nadda, zip. Having the images open vs protected does not raise any suspicion, that's extremely far reaching rhetoric that's simply just not true.

As for the agencies, all offer other services and use the images displayed on their site to offer such services, not just sell stock images which is the main purpose. The images are used to show the work they produce, not in any way shape or form used as endorsements of the people in them which is what would make it commercial usage. This non-topic has been discussed to death on this and other boards, displaying them on your site is not commercial or even close to it unless you go out of your way to make it so; i.e. adding to the image trying to make it sound/look like the people in the image are promoting or advertising for your company or you're using that image to sell a different product.

Contradiction number one:

In the bold below you say displaying the image to gain business is solicitation, but above you say prohibiting an artist from making a living through his art is suppressing his artistic liberty. By not allowing me to display my work on my site as stand alone images and portfolios to show potential new clients then I would not be able to make a living, you'd be suppressing my artistic liberty. Can't have it both ways here.

Contradiction number two:

The OP has the proof gallery up selling the images themselves, you said not having them password protected was "suspicious" in that it could be considered commercial...but now you're saying this (underlined) which is the exact opposite of your original statement. OP selling the image itself is "suspicious", agencies selling the image itself and all of a sudden it's not "suspicious", makes no sense.

MJPhotos24 wrote in post #13185706
Contradiction number one:

In the bold below you say displaying the image to gain business is solicitation, but above you say prohibiting an artist from making a living through his art is suppressing his artistic liberty. By not allowing me to display my work on my site as stand alone images and portfolios to show potential new clients then I would not be able to make a living, you'd be suppressing my artistic liberty. Can't have it both ways here.

This isn't a contradiction at all. The law (and courts) recognise that the intent of an action plays a key roll. It can often be difficult to unravel the nuances of this, especially when multiple areas of law (copyright, commerce etc) overlap.

The law recognises that the same image may be used for different purposes or may even be used for multiple purposes at the same time and that one of the uses may be primary. If you upload an image to flickr (a sites whose primary purpose is considered to be the display of images) then your purpose will be deemed non-commercial. If you upload the same image to a blog post on your own company's site (the purpose of which is to promote your business) this would be considered commercial because the primary intent is promotion/solicitation​. However, if the image is uploaded to the same web site for the primary purpose of selling that image to the client then the law recognises that the action is non-commercial. Yes, just by being there, the image may also indirectly attract a new customer but the law recognises that that isn't the primary purpose and that the sale of the image is (as RDKirk pointed out) considered a necessary corollary to the first amendment right to free expression.

Dan Marchant wrote in post #13193380
This isn't a contradiction at all. The law (and courts) recognise that the intent of an action plays a key roll. It can often be difficult to unravel the nuances of this, especially when multiple areas of law (copyright, commerce etc) overlap.

The law recognises that the same image may be used for different purposes or may even be used for multiple purposes at the same time and that one of the uses may be primary. If you upload an image to flickr (a sites whose primary purpose is considered to be the display of images) then your purpose will be deemed non-commercial. If you upload the same image to a blog post on your own company's site (the purpose of which is to promote your business) this would be considered commercial because the primary intent is promotion/solicitation​. However, if the image is uploaded to the same web site for the primary purpose of selling that image to the client then the law recognises that the action is non-commercial. Yes, just by being there, the image may also indirectly attract a new customer but the law recognises that that isn't the primary purpose and that the sale of the image is (as RDKirk pointed out) considered a necessary corollary to the first amendment right to free expression.

No, actually it is very much a contradiction of statements, it's very simply not true in the context of what is being discussed. YES, it would be true if say you were using that image to sell baseball bats that a player is using in a photo you took - that's commercial usage. NO, it's not commercial usage when a photographer displays his work to show what they do as a professional photographer, an artist. There's a BIG difference here, and as I've already said repeatedly it depends on how it's displayed - if you try to make it look like the person in the photo is "advertising" for your company then it's commercial, if it's a portfolio or stand alone image then it is not considered commercial. So yes, if you took it out of context it's not a contradiction, but however in this case it very much is one.

Your business blog example is not true as well, just because it's on a photographers business blog does not make it commercial. If a company used an image while using that blog to promote a product, then yes it could be commercial...again though, out of context and depends how it's used or displayed. I can upload a photoshopped photo to flickr that could be considered commercial as well, depends on how it's displayed. I can sell an image on my site and have it considered commercial as well - say if I sold the image on a product like t-shirts or any other product like that, again it depends on how it's displayed. So all your examples can be the exact opposite of what you said, it - again - depends on the purpose and how the image is used.

People need to use some common sense here, if displaying an image on a photographers website as a stand alone or in a portfolio was "commercial" - or that writing a blog associated with your photography business was "commercial" - then pretty much all top of the line photographers and millions of other pros and amateurs would be breaking the law. This is NOT happening, it does not exist, it's make believe.

Top baseball photographer in the country...his blog...promotes his business...not commercial...
http://manginphotograp​hy.net/

Regarded as one of the best of all time...his baseball portfolio...not commercial...
http://walteriooss.com​/portfolios/8

Seriously people need to learn the differences here.

The government does not prohibit you--the client does, by not giving you permission to user her image for your own purposes. Both your right to freedom of expression and her right to privacy are Constitutionally protected. Her exercise of her right to privacy and her right to publicity (by not permitting you to show her image to others for your own commercial gain without acceptable compensation to her) checks your right to free expression--in certain circumstances, this being one of them (in other words, "your right to swing your fist stops at my chin").

If the client sues you for an invasion of privacy on the grounds that you used her image for your commercial gain without her permission, the court will determine whether the nature of your use was to sell her the images or to solicit further business. If only she was able to see the images, her case would fail immediately...if everyone can see them--and you're not actually offering the images for sale to everyone else--then she has a case for the court.

I do know a number of nationally known commercial and private commission photographers--they do use model releases for what they put on their websites and other business promotion pieces.

Bloggers...well, bloggers get away with a lot, including blatant copyright violations left and right...at the moment. They're not examples of legality.

Here is what one lawyer has to say about it:

http://www.photoattorn​ey.com …privacy-concerns-for.html