Photo Forum / Film Photography / Darkroom / May 2004
Restrictions on using human subjects
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rgans - 17 May 2004 04:32 GMT Hi. I know this isn't rec.photo.people, but that group is a little, uh, weird, so I thought I might try asking here.
I was at a street fair recently and took some shots. I'd like to post them on my web site, but....some of the shots are not all that complimentary. What is my liability, if any? These were just people passing by; the backs of food kiosks, etc. (not all are uncomplimentary, but some are).
Thanks and again, apologies if this is the wrong group....
RON _________________________________________________________________ B&W Landscape and Still Photography: http://www.ronaldgansphotography.com
Francis A. Miniter - 17 May 2004 04:50 GMT Hi Ron,
Actually, I find rec.photo.tech.people a lot saner than it was a couple years ago.
As to your question, if people are out in public (in the USA, at least), they lose some privacy rights and are fair subjects for photography - as long as their image is not later used commercially (without written consent) or degradingly (e.g., in association with a negative commentary). The commercial limitation has an exception for news, of course. The commercial limitation is intended to keep one from displaying the person's image in conjunction with a commercial product or other monetary venture. The limitation on degrading usage is intended to prevent the presentation of the person in a "false light".
Straighforward artistic use of an image should not give rise to liability in the USA. The same may not be true in Europe any more with the implementation of laws regarding privacy rights in one's image. Also, there may be more rights accruing to the photographed person in Quebec, as well, if I remember a case discussed in r.p.t.people some time back. There is, of course, the problem of identification.
Just think about the affect such laws would have on the role of photography in history. The Roosevelt administration sent out photographers to record the conditions in Appalachia and in the dust bowl. They took pictures of strange families, haggard and poverty stricken people. How much of that would be possible if the trend in Europe gains widespread acceptance?
Francis A. Miniter
> Hi. I know this isn't rec.photo.people, but that group is a little, uh, > weird, so I thought I might try asking here. [quoted text clipped - 9 lines] > _________________________________________________________________ > B&W Landscape and Still Photography: http://www.ronaldgansphotography.com Mark A - 17 May 2004 06:26 GMT > As to your question, if people are out in public (in the > USA, at least), they lose some privacy rights and are fair [quoted text clipped - 7 lines] > limitation on degrading usage is intended to prevent the > presentation of the person in a "false light". I think it was pretty obvious that the people who images were captured near food kiosks, were not displayed in a favorable light (i.e., they were displayed in an unfavorable light).
Mxsmanic - 17 May 2004 06:36 GMT > I think it was pretty obvious that the people who images were captured near > food kiosks, were not displayed in a favorable light (i.e., they were > displayed in an unfavorable light). If your purpose is still editorial, news, etc., then that may not be a problem. I'd suggest consulting a lawyer--but then again, in this domain, the results of litigation are so random that even lawyers can't really predict anything usefully (except in the most extreme cases).
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Nicholas O. Lindan - 17 May 2004 06:52 GMT > The Roosevelt administration > sent out photographers to record the conditions in > Appalachia and in the dust bowl. They took pictures of > strange families, haggard and poverty stricken people. Walker Evans illustrations for the book "Let Us Now Praise Famous Men" are in this genre. The pictures include not only portraits but photos of the subjects' fly speckled bed, filthy kitchen and other unsavouries.
Later on he took a series of sneak shot portraits of people riding the NY subway. He didn't have any qualms about publishing the "Let Us Now..." book, but he waited some ~30 years before publishing the subway portraits -- he thought that by then the subjects had likely passed away, moved, gone blind.
The Library of Congress (loc.gov) sells real silver-gelatin prints of the FSA photos for a song. Get the 'premium' hand dodged prints, the regular ones are kind of drugstore-ish.
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rgans - 17 May 2004 12:50 GMT First, thanks to all for this discussion. It is very helpful.
Since I am not a photojournalist, taking these quick digital images, while fun, is not my primary creative purpose in photography. I think, rather than consult a lawyer about something that is not my primary goal, I'd rather just share them privately with friends. The images did not catch some people in their most favorable light (but then again, nothing more than people eating and not even eating in a gross fashion or making a mess of themselves.)
Thanks again.
RON
> > The Roosevelt administration > > sent out photographers to record the conditions in [quoted text clipped - 16 lines] > prints of the FSA photos for a song. Get the 'premium' hand > dodged prints, the regular ones are kind of drugstore-ish. Nicholas O. Lindan - 19 May 2004 16:57 GMT > I'd rather just share them privately with friends. You can leave them to your grandchildren. By that time the subjects will be well and truly dead and the images can be published. Assuming they are well dated to the present era with fad food and fashion. Think Victorian reprints.
> The images did not catch some people in their most favorable light >(but then again, nothing more than people > eating and not even eating in a gross fashion or making a mess of > themselves.) I believe (as in: I heard somewhere (or I think I did)) it is illegal to take a picture of the Queen of England whilst she eats.
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Sandy - 23 May 2004 20:31 GMT > Hi. I know this isn't rec.photo.people, but that group is a little, uh, > weird, so I thought I might try asking here. [quoted text clipped - 9 lines] > _________________________________________________________________ > B&W Landscape and Still Photography: http://www.ronaldgansphotography.com Hi, I'm new here but wanted to post my thoughts on this. My advice may not work for you but I never photograph anyone at any time unless I've gotten a signed model release unless it's a backyard BBQ at my house and we all have the disposable camera's on the tables for fun. Also, times with friends, etc. parties, where it's a private function and friends want to pose for memorable photos. But strangers, I have never had a desire to randomly photograph them unless I was on a study in another Country and was trying to document the area, people, living conditions, etc. and in those cases I simply can't stop everyone and get a release signed, even if the print is sold for use later. You just have to be careful all the way around.
A friend of mine owns a typical portrait studio and even with a signed model release he used an image of a client (without permission) on a business brochure and he had to settle for 20 grand for "pain and suffering". So, just be careful.
Another story, sorta funny, I was involved in a gallery showing where some of my musician clients were featured in the work and were coming. As I opened the newspaper up to read the gallery ads that were full page color displays of all the galleries and their ware, low and behold there was a painting of one of my clients and she had no idea who that artist was or how they got her photo to use in the painting! When we walked down to the gallery to explain who the person was she offered to sell the painting, not once even flinching that she was capitalizing off of someone's image who is well known in our area.
Mxsmanic - 23 May 2004 22:11 GMT > A friend of mine owns a typical portrait studio and even with a signed > model release he used an image of a client (without permission) on a > business brochure and he had to settle for 20 grand for "pain and > suffering". What was in the model release?
> When we walked down to the gallery to explain who the person was she > offered to sell the painting, not once even flinching that she was > capitalizing off of someone's image who is well known in our area. For some reason, painters can get away with using the images of real people much more easily than photographers.
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Sandy - 24 May 2004 05:27 GMT > > A friend of mine owns a typical portrait studio and even with a signed > > model release he used an image of a client (without permission) on a > > business brochure and he had to settle for 20 grand for "pain and > > suffering". > > What was in the model release? Honestly I don't know, I never read his model releases, but I'd like to know myself. I use a standard release purchased from my camera dealer. I write in specifics per case.
> > When we walked down to the gallery to explain who the person was she > > offered to sell the painting, not once even flinching that she was > > capitalizing off of someone's image who is well known in our area. > > For some reason, painters can get away with using the images of real > people much more easily than photographers. Ya, photographers are firstly not recognized as being "artists" and secondly their products seem to be more of a threat. It might be because so many bad photos are out there that incriminate people whereas a painting is something that tends to take a lot of time and get prior approval before happening to begin with? Not sure, just some thoughts. Although I know most celebrities do own the rights to their own image and you can get sued for painting them and selling the copies.
Mxsmanic - 24 May 2004 07:45 GMT > Honestly I don't know, I never read his model releases, but I'd like > to know myself. The content of the model release makes all the difference.
> I use a standard release purchased from my camera > dealer. I write in specifics per case. And what does that release say?
> Ya, photographers are firstly not recognized as being "artists" and > secondly their products seem to be more of a threat. It might be > because so many bad photos are out there that incriminate people > whereas a painting is something that tends to take a lot of time and > get prior approval before happening to begin with? Not sure, just some > thoughts. Photography has been demonized by the news media. First, many media professionals have used photography very abusively themselves, in order to create sensational stories instead of simple reports of newsworthy fact. Second, these same media professionals miss no opportunity to sensationally report every abuse of photography, whether it be pedophilia (always a favorite of the media), up-skirt photography, invasions of privacy, or whatever.
In the olden days, people loved having their picture taken. That attitude is rare today, except among small children whose minds have not yet been polluted by baseless stereotyping of photography and photographers.
> Although I know most celebrities do own the rights to their > own image and you can get sued for painting them and selling the > copies. Everyone has rights to his own image, it's just that celebrities live off them to a greater extent and thus are more likely to try to protect them.
Even Arnold is trying to prevent people from using his image today, despite the fact that he is now the governor and a public political figure, instead of an entertainer living off his image. I'd say he has a few things to learn in his new job, one of them being that he can no longer object to the use of his image in most cases.
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Jean-David Beyer - 24 May 2004 11:25 GMT >> Honestly I don't know, I never read his model releases, but I'd like >> to know myself. [quoted text clipped - 5 lines] > > And what does that release say? I bought a pad of these once. I forget from where. They were surely written by a journeyman lawyer. They give me all rights and next to nothing for the rights of the model. It is several paragraphs long and most people I know refuse to sign them. I cannot really say that I blame them.
I have few occasions for needing a model release, fortunately. What we do is use mine as a starting point and cross out or otherwise revise what it says so that the model will sign it. Of course since neither I nor the model is likely to be an attorney, it is doubtful how much value the release would have were it ever to go to court.
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Nicholas O. Lindan - 24 May 2004 13:28 GMT > I have few occasions for needing a model release, fortunately. What we do > is use mine as a starting point and cross out or otherwise revise what it > says so that the model will sign it. Of course since neither I nor the > model is likely to be an attorney, it is doubtful how much value the > release would have were it ever to go to court. In my brief (but all too long) experience, all else being equal, the party with the most money to spend on lawyers will win. Everything else is pretty irrelevant.
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Francis A. Miniter - 24 May 2004 17:31 GMT > > [quoted text clipped - 9 lines] >else is pretty irrelevant. > Fortunately, not so. I am a lawyer who has made a living winning cases against big corporations for clients who are poor. In my experience, nothing matters more than preparation, and in particular, the attorney who knows the documents best has the best chance of success. [My cases tend to be heavily document based.] I will always remember with delight the time I had an age disccrimination case and had obtained a ruling denying the defendant's motion for summary judgment. Time passed with no reaction from the defense, but I knew that they would not win at trial based on the ruling. Finally, one day I received in the mail a communication stating that a huge New York law firm was now in the case for the defense. I flew out of my office, doing the best leap and somersault I could, shouting "We've won! We've won!" Curiously no one in my small office saw facing a major national law firm as sign of victory, until I explained that while the replacement of the largest law firm in the city by a mega law firm may look like they are planning to win, I saw it as the corporate defendant having finally looked at the reality of the case and decided that damage control was in order. The case settled favorably in three months.
Francis A. Miniter
Mxsmanic - 24 May 2004 18:12 GMT > I bought a pad of these once. I forget from where. They were surely > written by a journeyman lawyer. They give me all rights and next to > nothing for the rights of the model. So?
> It is several paragraphs long and most people I know refuse > to sign them. I cannot really say that I blame > them. Why do they refuse?
> I have few occasions for needing a model release, fortunately. What we do > is use mine as a starting point and cross out or otherwise revise what it > says so that the model will sign it. Of course since neither I nor the > model is likely to be an attorney, it is doubtful how much value the > release would have were it ever to go to court. Contracts and similar documents are just as binding upon non-lawyers as they are upon lawyers.
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Jean-David Beyer - 25 May 2004 12:44 GMT >>I bought a pad of these once. I forget from where. They were surely >>written by a journeyman lawyer. They give me all rights and next to [quoted text clipped - 7 lines] > > Why do they refuse? Usually the part about where the "pictures or portraits of me, or in which I may be distorted in character or form, in conjunction with my own or fictitious name, ..., for any purpose whatsoever, including the use of any printed matter in conjunction therewith."
Also the part that states: "I hereby wave any right to inspect or approve the finished photograph or advertizing copy or printed matter that may be used in conjunction therewith or to the eventual use that it might be applied."
>>I have few occasions for needing a model release, fortunately. What we do >>is use mine as a starting point and cross out or otherwise revise what it [quoted text clipped - 4 lines] > Contracts and similar documents are just as binding upon non-lawyers as > they are upon lawyers. Sure they are, but as non-attorneys, the contract as modified by us might not way what we think it says.
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Mxsmanic - 25 May 2004 20:30 GMT > Sure they are, but as non-attorneys, the contract as modified by us might > not way what we think it says. If it doesn't say what you think it says, it may not even be binding upon you.
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Sandy - 26 May 2004 17:35 GMT Okay, here is the form below, I typed it straight from the pad O' forms I bought! See what you think. *********************************************************
For valuable consideration as listed below, I hereby give the photographer:
_____________________________________-
his legal representatives, and assigns, the right and permission to copyright and/or use, publish, and reuse and republish photographic pictures or portraits made of me in which I may be distored in character or form, representing my own name or a fictitious name, through any media and for whatever purpose the photographer choose. I hereby release, discharge and agree to save harmless the photographer, his representaives, assigns, employees, and any person or persons, corporation or corporations, acting under the permission of the photographer, including any firm publishing or distributing the finished porduct, even though the finished product may be distored, blurred, altered, or used in composite form, either intentionally or otherwise and subject me to scandal, ridicule, reproach, scorn or indignity. I hereby waive any right to approve the finished photographed or any copy which might be used in conjunction with the finished photograph. I hereby warrant that I am under/over twenty-one years of age, and am competent to contract in my own name, insofar as the above is concerned.
My compensation is to be as follows:___________________________
I have read the foregoing release, authorizations and agreement, before affixing my signature below, and warrant that I fully understand the contents thereof:
Date:_________________- Signed___________________
Witness_________________ Address___________
Address______________________
I hereby certify that I am the parent and/or guardian of:_______________- an infant under the age of twenty-one years, and in consideration of value received, the receipt of which is hereby acknowledged I hereby consent that any photographs which have been or are about to be taken by the photographer may be used by him for any purposes set forth in the release above, signed by the infant model, with the same force and effect as if signed by me. Parent or guardian:_______________ Address:______________________-
Mxsmanic - 27 May 2004 01:50 GMT As a general rule, the more complicated a release becomes, the easier it is to find a way to invalidate it in court.
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