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Photo Forum / Film Photography / Darkroom / May 2004

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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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Nicholas O. Lindan, Cleveland, Ohio
Consulting Engineer:  Electronics; Informatics; Photonics.
Remove spaces etc. to reply: n o lindan at net com dot com
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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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