STICKY:  When do I need a Release?

Muffin Princess wrote in post #14006456
Not sure if anyone's mentioned this yet (it's a long thread, I've read quite a few pages of it.) but how do the papparazzi get away with it?

They are taking pictures of celebrities in public venues and using the images editorially.

RDKirk wrote in post #14006782
They are taking pictures of celebrities in public venues and using the images editorially.

As I understand it (although I'm no authority) many are 'freelance' and sell the images to the highest bidder, without a particular outlet in mind. That business model just seems inappropriate to me.

viper522 wrote in post #14027387
As I understand it (although I'm no authority) many are 'freelance' and sell the images to the highest bidder, without a particular outlet in mind. That business model just seems inappropriate to me.

A. The outlets they're selling them to (at the highest bid) are editorial.

B. Technically, the legal liability for inappropriate use of the image is upon the user, not upon the photographer. It's the user who must have the appropriate model release. This will only concern commercial users, basically, those who would use the images for advertising as opposed to a news story.

For instance, if the photographer has told the highest bidder, "I have no model release," it's up to the user who bought the photograph to make sure he never uses it for commercial purposes (e.g., advertising). The photographer is in the clear as long as he has not misrepresented the model release situation to the purchaser of the image.

Excellent and precise information. Thanks.

I am a photographer selling prints of Mardi Gras crowd and costumed revelers images, archetecture images of national historic districts that are privately owned, miscilaneous "public space" images. I have read this thread still some questions that seem to be answered but the distinctions I have relate to some nuances about the words used which reflect some dichmyotomy in the answers. I want to believe that I have the right to sell multiple copies of prints of my photographs on my Internet gallery and to use my Internet portfolio of photos without using any specific photo as a cover to the portfolio to promote my skills as a photographer.

In the case mentioned early in this thread James Brown vs Corbis the decision was that Corbis lost its claim that its use was a "vehicle of information," and its claim that federal copyright supersedes state "publicity rights" of James Brown. It doesn't the court held. Because, quoting the case document, " " prohibited by the Publicity Act: 'Commercial purpose' means the public use or holding out
of an individual's identity (i) on or in connection with the offering
for sale or sale of a product, merchandise, goods or services; (ii)
for purposes of advertising or promoting products, merchandise,
goods, or services"

The law later defines goods as including, among other things, lithographs. Which is a legal and old fashioned word for prints. For example modern revolving printing presses are offset lithography presses. Still producing litographs. I don't know of cases but I don't think digital printing changes anything in the principle of the prohibition.

There are 2 sections there. The first about goods etc the second section of the law, which prohibits the use specificly in advertising but that doesn't limit the first section's prohibition against lithographs in and of themselves as a good/product for sale.
The James Brown case wasn't about sale of prints anyway it was about the sale of liscence of copyrights. Almost the same thing but not quite.
If anyone knows of cases about prints specificly it would be helpful. Cases where the print seller wins are preferred but cases where the print seller loses are important.

My questions, in light of these nuances and without a release and not about any advertising are; What is an "image" that I can sell? Is it just the copyright to the image and the buyer has to get release for prints? Is it just the one physical image? Is it no actual physical image? Is it multiple copies? Can anyone referance cases other than the Brown vs Corbis one about multiple copy printing without releases.

Second question. Not using any image except of myself as a cover for my internet portfolio of many images can I mention in my profile and on the home page of the portfolio that I am available for paid photographic work.

Another issue regarding "photo bombing". That is when, during Mardi Gras or other public event where everyone is taking pictures so there is no expectation that they will not be photographed, some punks jump into the photo and say "don't take my picture". They photograph themselves doing it and video themselves doing it. No one would use those pictures but they also merely calmly appear in the background of pictures. As they have documented many times where they verbally expressed the wish not to be photographed they might have a case against someone who claims they didn't. Would it be advisable to document their activities as a defense against their claims?.

I don't know of any cases in court about this but it looks like a setup targeting professional photographers for for legal claims if the good photos with them calmly in the background are sold.

The copyright issue is not the same thing as the model release issue. Two different issues, two different areas of constitutional right involved.

The model release issue revolves around the balance of the right of free expression versus the right to privacy. In that case, free expression usually (with certain fairly clear exceptions) trumps privacy.

Copyright--drawn from a different part of the constitution--is the right of (temporary) ownership of one's own creations.

Where they intersect is in the area of commerce. The right to free expression has been extended by the courts to include the right to earn a living through free expression--specifically, the right to sell the products of free expression. The Supreme court has ruled that your right to sell a print in exercise of your right of free expression trumps privacy.

Corbell's case was not one of free expression versus privacy, but copyright ownership versus privacy.

artsey wrote in post #15469681
Another issue regarding "photo bombing". That is when, during Mardi Gras or other public event where everyone is taking pictures so there is no expectation that they will not be photographed, some punks jump into the photo and say "don't take my picture". They photograph themselves doing it and video themselves doing it. No one would use those pictures but they also merely calmly appear in the background of pictures. As they have documented many times where they verbally expressed the wish not to be photographed they might have a case against someone who claims they didn't. Would it be advisable to document their activities as a defense against their claims?.

I don't know of any cases in court about this but it looks like a setup targeting professional photographers for for legal claims if the good photos with them calmly in the background are sold.

Saying "don't take my picture" is irrelevant.

Depending on the use of the photograph, having or not having written permission may be relevant. But if the picture was useable anyway without written permission, then it's still useable even if the person said, "Don't take my picture."

RDKirk,

Thanks for your reply. I sure hope you're right. Corbis lost on its contention that it was about copyright and that that trumped Brown but the court seems to have held that it wasn't. That it was about publicity right that Corbis needed a release for. I would still appeciete a referal to any specific cases on the subjects of multiple prints by photographer and use of portfolios on internet artist issues anyone may be aware of online I could refer to.

I'm still not exactly sure what you're talking about doing. If, however, you're using images online to solicit for sale or service of something other than those actual images themselves, you will need a model release.

Here's what I'm finding so far. It looks good as far as limited edition prints are concerned. Haven't found anything on "large" or infinite numbers of prints.

As the issues of release and act of publicity are state statue and court law those court cases involving decisions on the matter are the referance to use. A later court might find that your case isn't exactly like the referance and make you the example case to your credit or dismay. The referance case may involve 10 or 100 prints $20,000 each and the print seller won. Your case might involve 1000 prints at $20 each and the court could find the cases are differant enough for them to rule against you.

Still looking. So far the larsest numbers I've found are 5000 lithograph prints and 250 seriograph prints.

Anyone interested in the cases involved in the above info I'll post links.

Here's what I'm finding regarding portfolio use. There have been no cases of people suing for use of their publicity rights in a photographers website portfolio. Use of it on the cover needs a release. Website or printed book. But not editorial content of the book. The pictures in the book or website is considered editorial content same as a newspaper. The book like the newspaper is considered the "ediorial content" because what makes a buyer choose this one over that one is the "editorial content", the jounalistic, artistic, and speech expression in the website, book or newspaper. The court does not determine "newsworthyness". The plaintif in a case doesn't either. The editor, publisher, creator of the website, book or paper determines that.

Tiger woods claimed in part that the artist's use of his image in the artists non web based portfolio violated several rights including many being discussed here. He lost on all counts.

As case law governs and there are no cases on web based portfolios theory governs. Because the plaintift is theoreticly asserting the photographer needed a release to use the photo in the internet portfolio is asking the court to make new law. Such new law cases are very expensive for the plaintif. As all of an artists work is his "portfolio" restrictions on his portfolio are a restriction on his artistic expression. The form of presentation doesn't matter. That's the theory I would argue in my defense. I would cite the case of tiger woods but the judge might say that is not exactly like this case because the tiger woods case wasn't about a portfolio on the net. Still the courts are very lenient in their decisions restricting artistic expression, are very helpful regarding legal procedure (the expensive part) in the artists defence and are very tough on plantifs trying to make new law to restrict it. Few lawers would take such a case on a contingency basis unless the photographer was rich.

artsey wrote in post #15470270
Here's what I'm finding regarding portfolio use. There have been no cases of people suing for use of their publicity rights in a photographers website portfolio. Use of it on the cover needs a release. Website or printed book. But not editorial content of the book. The pictures in the book is considered editorial content same as a newspaper. The book like the newspaper is considered the "ediorial content" because what makes a buyer choose this one over that one is the "editorial content", the jounalistic, artistic, and speech expression in the book or newspaper. The court does not determine "newsworthyness". The plaintif in a case doesn't either. The editor, publisher, creator of the book or paper determines that.

Tiger woods claimed in part that the artist's use of his image in the artists non web based portfolio violated several rights including many being discussed here. He lost on all counts.

As case law governs and there are no cases theory governs. Because the plaintift asserting the photographer needed a release to use the photo in the portfolio is asking the court to make new law. Such new law cases are very expensive for the plaintif. As all of an artists work is his "portfolio" restrictions on his portfolio are a restriction on his artistic expression. The form of presentation doesn't matter. That's the theory I would argue in my defense. I would cite the case of tiger woods but the judge might say that is not exactly like this case because the tiger woods case wasn't about a portfolio on the net. Still the courts are very lenient in their decisions restricting artistic expression, are very helpful regarding legal procedure (the expensive part) in the artists defence and are very tough on plantifs trying to make new law to restrict it. Few lawers would take such a case on a contingency basis unless the photographer was rich.

This is what you may be missing:

The purpose of a published book is not to sell the writing services of the author, it's to sell that book.

If I publish a photo book of "The Wild Girls of Mardi Gras," I don't need a model release because the purpose of that book is to exist in itself as my free expression, not to solicit people to hire me to shoot their weddings.

My portfolio exist only to solicit my services as a photographer. That's its purpose--purely commercial. It doesn't matter whether it's a hardcopy portfolio or a website, it's purpose is solicitation of my services to future customers for other photography*, not the sale of those particular images or the portfolio itself.

*(Some states, such as New York and Illinois, make a specific exemption from the model release requirement for photographer's portfolios. In both cases, the exemption is not only specific to "photographers' portfolios and displays in the photographers' studios" but those exemptions are also specifically nullified if/when the subject makes an objection to even that use.

In other words, the fact that portfolios are specifically exempted means that they are actually considered commercial uses that would otherwise be included in the model release requirement. The fact that the exemption is immediately nullified if/when the subject objects indicates that the right to privacy is still intended to trump commercial use.

It's also not been demonstrated whether "portfolio" in those laws includes the concept of online portfolios or just hardcopy portfolios.)

By the way,
Just want to thank you all and just wanted to mention what I've been doing here. Might help you. I've been using a technique that I've found useful to find things out. I read some site or forum like this on a subject I'm interested in. Wheather I agree or disagree with the opinions or information presented in such media the posters are usualy at least knowlegable enough to be using in their posts words related to the subject. I use those words to guide my searches for the more specific info as i've found above. Clever idea huh? Works good too.

Thanks again.

RDKirk. Interesting about New York et al statutory law. Could you direct me to a referance containg the law itself? I'd like the see how it's specificly worded and the case that brought it into law. I'll search myself for "specific exemption from the model release requirement for photographer's portfolios in new york". But you could speed me up is you can supply the referance.