John the Geek wrote in post #11457461
I'm not as convinced that making and selling prints for commercial gain counts as editorial use. But I'm not confident that it's not either. If you have references to this I'd love to read more about it.
First amendment, easy find.
Also, this case was pretty big as the IHSA had to "settle" meeting all the newspaper associations claims. The secondary usage they talk about is selling prints which is mentioned in there.
Commercial product and commercial gain is a bit different. Commercial products you need licensing for, however, newspapers, news websites, magazines, etc. all make commercial gain technically - not many are "not for profit" organizations. You can make money in the news.
Another basic rundown of things...
A stand alone print is not "advertising" a product or service.
Now, private property owners can restrict photography all they want. However, after the image is captured only a judge can rule if it should be deleted/made unavailable. The only way that is happening is if you obtained it illegally (hidden camera, kept shooting after being told to stop, ignored posted signs of laws, etc).
They can file a civil suit for anything. They may not win, but they can always make a claim, pay their lawyers, and let the court decide. You called it scare tactics, and you're right, but too often it works. "We'll drop the suit if..."
Frivolous charges, countersuit, they'd be creating one hell of a mess. It's why no league has done it - they can not win and have easier, cheaper scare tactics to make you stop.
Funny thing is OSU photo policy.
1. Still cameras with a lens greater than 100mm, any audio and video recording equipment, monopods, dual pods and tripods are prohibited.
Talk about tough to police with zooms and security guards not knowing what 100mm means!
2. Images are for personal use only and may not be used for any commercial purposes and may not be re-sold without the express consent of The Ohio State University. Guests found to be using images for any commercial purpose or found to be re-selling pictures will be asked by The Ohio State University to cease and desist from using the images for commercial purposes which may be against NCAA bylaws.
Restrictive isn't it, but read it closely. It insinuates no re-selling at all but ALWAYS in the vain of commercial usage. It never says prints or editorial - all surrounded in commercial context and it shows in the last part that is underlined. It seems they'll only send the cease and desist for commercial purposes - what happened to any "re-sell"?? Just disappeared, isn't that odd. That confusing jargon is why the lawyers get the big bucks.
As for those NCAA bylaws, pay close attention to the last sentence....
220.127.116.11 Use of a Student-Athlete’s Name or Picture without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required in cases in which a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use. (Revised: 1/11/97, 5/12/05)
I see your smiley face and raise you a