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Archive 2012 · Legal Issue - 1st amendment and rights of publicity
  
 
blutch
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p.1 #1 · p.1 #1 · Legal Issue - 1st amendment and rights of publicity


I know that informational and editorial photography (with publication of content) is legal under the first amendment if these two conditions are met: (1) a message to be communicated; and (2) an audience to receive that message.

So, it is legal for a photojournalist to take a photo of an individual in public and publish it. I also know that individuals have rights of publicity and privacy. You cannot use someone's likeness to advertise your product without their permission even if you own the copyright of the image.

That said, if I understand correctly what I've read is - if I am official press covering an organization's event, the organization does not need the permission of the individuals who appear (perform or speak) at the event to take and publish photos of their performance or appearance. Right? This is simply reporting the news of an event attended by the public (although admission is charged, the event is open to the public and there are people in attendance.)

I know that as photographer, either I or the organization I represent, holds the copyright on the images of this event. Does that give me or the organization the right to sell prints or digital images of the event without the written permission of those who appear in the images?

I know that newspapers sell the photos they publish regardless of who is in the images. This is not the same as using someone's image for commercial purposes - advertising for instance - without their permission, is it?

I know musical theater and concert photographers that sell images of artists who have appeared live in public without their permission. Are they breaking the rights of publicity laws?

I have researched this a bunch and cannot find any cases or even articles written with this exact scenario, so I would be grateful for any web pages or documents that deal with this issue. I could really use some clarity on this issue.

Thanks!

B



Sep 30, 2012 at 04:31 AM
JimboCin
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p.1 #2 · p.1 #2 · Legal Issue - 1st amendment and rights of publicity


I think the best answer is for you to ask these questions of an Intellectual Property attorney, as there are many "it depends" in the answers to your questions. Asking photographers for legal advice is probably not the best route to follow.

There are IP attorneys who specialize in photography-related issues. One of them is Carolyn Wright. There are a number of others, including those whose books are noted below.


For a general background on the topic of legal issues associated with photography the following books may be of interest, if you have not already read them:

- "Legal Handbok for Photographers - The Rights and Liabilities of Making Images, 2nd. Ed." by Bert Krages, Esq. This is my favorite book on the subject.

- "The Law (In Plain English) for Photographers" by Leonard D. Duboff.

- "The Professional Photographer's Legal Handbook" by Nancy E. Wolff.

- Photographer's Legal Guide" by Carolyn E. Wright, Esq.


One interesting web site is:

- http://www.wipo.int/sme/en/documents/ip_photography.htm





Oct 02, 2012 at 08:12 AM
RDKirk
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p.1 #3 · p.1 #3 · Legal Issue - 1st amendment and rights of publicity


blutch wrote:
I know that informational and editorial photography (with publication of content) is legal under the first amendment if these two conditions are met: (1) a message to be communicated; and (2) an audience to receive that message.


No, those are not "conditions" of the first amendment. There are no "conditions" of the first amendment. You have a constitutional right in the US to babble nonsense to nobody and call it "free expression." Many people would argue that's all much of modern art is anyway.

So, it is legal for a photojournalist to take a photo of an individual in public and publish it. I also know that individuals have rights of publicity and privacy. You cannot use someone's likeness to advertise your product without their permission even if you own the copyright of the image.

That said, if I understand correctly what I've read is - if I am official press covering an organization's event, the organization does not need the permission of the individuals who appear (perform or speak) at the event to take and publish photos of their performance or appearance. Right? This is
...Show more

Depends on the use, as you've already stated. If you are " simply reporting the news of an event," you are protected by the First Amendment. But don't forget that state laws against libel may still apply.

If it's not a matter of news event, state laws against undue publicity and public humilitation may also apply for private individuals (people who do not normally seek publicity).

I know that as photographer, either I or the organization I represent, holds the copyright on the images of this event. Does that give me or the organization the right to sell prints or digital images of the event without the written permission of those who appear in the images?

You can normally directly sell the images, as the Supreme Court has shown, as a matter of free expression. The Supreme Court has further ruled that the effective practice of free expression must include the right to earn a living from that free expression--thus, the images can be sold for a profit.

Free expression as identified by the First Amendment limits personal privacy, so state privacy laws have been written to accomodate it. However, commercial use doesn't have First Amendment protection, so state privacy laws trump commercial use.

There is a point, however, at which mass reproduction and distribution of images (such as with posters) have been ruled to be "commercial use" by some state courts--and ruled not by others.

I know that newspapers sell the photos they publish regardless of who is in the images. This is not the same as using someone's image for commercial purposes - advertising for instance - without their permission, is it?

Most states specify "commercial use" as promotion or solicitation of a service or product--and not necessarily for-profit.

I know musical theater and concert photographers that sell images of artists who have appeared live in public without their permission. Are they breaking the rights of publicity laws?

In most states, celebrities have less right to privacy because it's their business to seek publicity and so they have blurred the line by their own actions. However, they still have their "right to publicity" against commercial use of their images, and will usually fight for it just as a creative author will fight for his copyright.

I have researched this a bunch and cannot find any cases or even articles written with this exact scenario, so I would be grateful for any web pages or documents that deal with this issue. I could really use some clarity on this issue.


As has been mentioned, Carolyn Wright's blog is a good place to browse. Also browsing The Copyright Zone by Edward Greenberg and Jack Reznicki is valuable. Their book ]"The Photographer's Survival Manual" is practically essential.


Edited on Oct 02, 2012 at 01:50 PM · View previous versions



Oct 02, 2012 at 12:52 PM
blutch
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p.1 #4 · p.1 #4 · Legal Issue - 1st amendment and rights of publicity


Thank you both for these answers. One question.. when you refer to State's laws... is this the state in which the event you are covering occurs, or the state in which the artist/subject resides?

B



Oct 02, 2012 at 01:10 PM
RDKirk
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p.1 #5 · p.1 #5 · Legal Issue - 1st amendment and rights of publicity


blutch wrote:
Thank you both for these answers. One question.. when you refer to State's laws... is this the state in which the event you are covering occurs, or the state in which the artist/subject resides?

B


Either and both, but usually the state where the publication appears.



Oct 02, 2012 at 01:45 PM
blutch
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p.1 #6 · p.1 #6 · Legal Issue - 1st amendment and rights of publicity


What if it is just online publication? The State where the server resides?


Oct 02, 2012 at 01:47 PM
RDKirk
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p.1 #7 · p.1 #7 · Legal Issue - 1st amendment and rights of publicity


blutch wrote:
What if it is just online publication? The State where the server resides?


Wherever a plaintiff can argue a legal standing. Yes, the location of the server has also been used. The state of the plaintiff, the state of the defendent, the state of the location of the server, the state where the publication occurred...any and all.



Oct 02, 2012 at 01:54 PM
sic0048
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p.1 #8 · p.1 #8 · Legal Issue - 1st amendment and rights of publicity


blutch wrote:
That said, if I understand correctly what I've read is - if I am official press covering an organization's event, the organization does not need the permission of the individuals who appear (perform or speak) at the event to take and publish photos of their performance or appearance. Right? This is simply reporting the news of an event attended by the public (although admission is charged, the event is open to the public and there are people in attendance.)

B

If this is for a legitimate news organization and the images will be appearing in a legitimate news outlet, then you should be fine. However you have the news organization as a resource, so don't be afraid to ask them questions.

If this is more for personal use or use by the organization, then I think the easiest way to make sure everything is on the up and up is to have the organization have the performers/speakers sign a model release as part of the deal. I'm sure they are signing a contract or some sort of written agreement and the model release can be included in that paperwork. It doesn't need to be a separate form. Honestly it may already be part of the paperwork, so if you haven't asked the organization or seen the paperwork yourself, I would ask these types of questions instead of assuming there isn't something already in place.

Just my two cents from a non-lawyer...



Nov 19, 2012 at 04:39 PM
Daniel Smith
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p.1 #9 · p.1 #9 · Legal Issue - 1st amendment and rights of publicity


http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0

http://forums.dpreview.com/forums/post/17164866

This case might answer some of your questions.

A photo of a Jewish gentleman used in a book and exhibits. The man was in a public place when photographed. He sued - and lost.

http://www.tjcenter.org/ArtOnTrial/trademark.html This one has Tiger Woods, the Golfer suing an artist for selling a painting and limited editions of that painting of the Golfer. Woods lost.



Jan 28, 2013 at 04:54 PM
mdude85
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p.1 #10 · p.1 #10 · Legal Issue - 1st amendment and rights of publicity



I think the best answer is for you to ask these questions of an Intellectual Property attorney, as there are many "it depends" in the answers to your questions. Asking photographers for legal advice is probably not the best route to follow.


An IP attorney would probably say "it depends". Do remember that Carolyn Wright and other bloggers represent the voice of a single attorney and not necessarily the legal community.

Also, to my knowledge there is no such thing as official press (I'd be curious to know what institution or organization formally or legally accredits journalists). Organizations can, however, control who is allowed in as editorial press and who isn't.

Also, there ARE indeed myriad conditions to constitutionally protected speech and expression (someone above falsely stated that "there are no 'conditions' of the first amendment").


Edited on Jan 29, 2013 at 03:33 PM · View previous versions



Jan 28, 2013 at 07:33 PM
 

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Littleguy
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p.1 #11 · p.1 #11 · Legal Issue - 1st amendment and rights of publicity


For big events, media accrediation is tightly controlled - don't expect to be able to bring your camera and just shoot away.

Media accrediation can also come with strings attached - big name performers have been known to demand that copyright of photos be signed over or permission obtained before publication of images as a condition of access.

There are ways to limit your use if the event / performer is a popular one.

For little events or unknown performers - shoot away, I doubt they would give you any problems.



Jan 29, 2013 at 05:26 AM
RDKirk
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p.1 #12 · p.1 #12 · Legal Issue - 1st amendment and rights of publicity


Also, there ARE indeed myriad conditions to constitutionally protected speech and expression (someone above falsely stated that "there are no 'conditions' of the first amendment").

There are no conditions to the First Amendment. There are limitations--but there are no conditions to be met in order for speech or expression to be protected.

If there are, please list the conditions my work must meet so that I can be sure to check them off the next time I put a picture on the web.

And provide references.



Jan 31, 2013 at 03:01 AM
RustyBug
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p.1 #13 · p.1 #13 · Legal Issue - 1st amendment and rights of publicity


Not to suggest that I'm correct ... i.e. anecdotal only ... but I think things like shouting "Fire" in a crowded theater when none exists presents (i.e. artificially inciting a safety issue or something like that) an issue of societal safety overriding personal rights.

I think there are some other accosting type of issues that have been found unsupported by 1st Amendment, but again ... anecdotal only.




Jan 31, 2013 at 03:23 AM
Joseph Garcin
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p.1 #14 · p.1 #14 · Legal Issue - 1st amendment and rights of publicity


Generally, when speaking of freedom of speech as defined by the First Amendment, the terminology is "exceptions," rather than limitations, or conditions, and certain categories and standards have been established to set a standard of how this exceptions result in types of speech that are "less than protected."

Obscenity, Child Pornography, Content-Based Restrictions (this is the famous "fire in a theatre" example by Justice Holmes), Non-Content-Based Restrictions, Prior Restraint, Commercial Speech, Defamation, Speech Harmful to Children, Children’s First Amendment Rights, Time, Place, and Manner Restrictions, Incidental Restrictions, Symbolic Speech, Compelled Speech, Radio and Television, Freedom of Speech and Government Funding, Free Speech Rights of Government Employees, and Public Forum Doctrine are all areas where the Supreme Court has found that speech can be less than protected.

But since the bone of contention is the word "condition," I will throw my 2 cents in saying that there are situations where conditions need to be met in order to receive your free speech protection. A parade permit; decency conditions placed on grants and other federal funding (see National Endowment for the Arts v. Finley); a location permit for photography; all of these have conditions that limit your right to free speech until certain conditions have been met, and all of these have case law from the Supreme Court backing them up. Just as your right to bear arms doesn't give you a right to carry guns to a certain number of specified places, your freedom of speech does have restrictions, and at times, conditions.



Jan 31, 2013 at 04:14 AM
RDKirk
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p.1 #15 · p.1 #15 · Legal Issue - 1st amendment and rights of publicity


But since the bone of contention is the word "condition," I will throw my 2 cents in saying that there are situations where conditions need to be met in order to receive your free speech protection. A parade permit; decency conditions placed on grants and other federal funding (see National Endowment for the Arts v. Finley); a location permit for photography; all of these have conditions that limit your right to free speech until certain conditions have been met, and all of these have case law from the Supreme Court backing them up. Just as your right to bear arms doesn't...Show more

I can see what you're saying, but I would point out that those "conditions" are really conditions upon which it's necessary to intrude or depend on areas of established public good or public safety in which to exercise your free expression.

If my expression requires the use of public property or public funds, then, yes, there are "conditions" to be met. But that's only because my particular expression is dependent on public largesse. That's not different from being dependent on private resources--no publisher is required to publish my book, no web hosting service is required to host my website. Neither private nor public entities are required to support my free speech expression. This is not a "condition" of free speech protection.

I would still wait to see if there are pre-conditions to be met when my free expression does not depend on public largesse, but is fully met by my own resources.



Jan 31, 2013 at 02:00 PM
Littleguy
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p.1 #16 · p.1 #16 · Legal Issue - 1st amendment and rights of publicity


Just my 2 cents as a non-American.

It appears that the Right of Free Speech only extends until you start to violate other people's rights. It does not automatically trump all other rights out there.

I think this was the OP's original question - how much can free speech rights override other rights that are out there?

I think the answer is: It depends.

This is from Wikipedia, so trust at your own risk:
http://en.wikipedia.org/wiki/United_States_free_speech_exceptions

Here are their examples of limitations on Free Speech protection from the article. There are a bunch more that depend on what you call the public's largesse.

1.1 Incitement
1.2 False statements of fact
1.3 Obscenity
1.4 Child pornography
1.5 Fighting words and offensive speech
1.6 Threats
1.7 Speech owned by others




Jan 31, 2013 at 03:49 PM
RustyBug
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p.1 #17 · p.1 #17 · Legal Issue - 1st amendment and rights of publicity


Littleguy wrote:
It appears that the Right of Free Speech only extends until you start to violate other people's rights.


+1 @ the spirit.

While not literal law, the concept of Life, Liberty & the Pursuit of Happiness ... which does NOT include tromping on other people's rights in exercise of your own. Unfortunately the answer to a legalistic question has long since been convoluted beyond its philosophical origins and intent, with a battle always waging on both sides ... thus, it depends.



Jan 31, 2013 at 05:37 PM
mdude85
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p.1 #18 · p.1 #18 · Legal Issue - 1st amendment and rights of publicity



Generally, when speaking of freedom of speech as defined by the First Amendment, the terminology is "exceptions," rather than limitations, or conditions, and certain categories and standards have been established to set a standard of how this exceptions result in types of speech that are "less than protected."


Generally speaking, "exceptions to free speech protection" and "limitations on free speech protection" are synonymous. A limitation is a type, or species, of condition (i.e., "limiting condition").


Edited on Feb 02, 2013 at 06:29 PM · View previous versions



Feb 02, 2013 at 04:09 PM
martines34
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p.1 #19 · p.1 #19 · Legal Issue - 1st amendment and rights of publicity


If you are not a member of ASMP you should look into it.

American Society of Media Photographers

About ASMP:

The American Society of Media Photographers is the premier trade association for the world’s most respected photographers. ASMP is the leader in promoting photographs’ rights, providing education in better business practices, producing business publications for photographers and helping to connect purchases with professional photographers.

For more information,

visit www.asmp.org

About CCC:

Representing copyright holders from nearly every country in the world, CCC is a global rights broker for millions of the world’s most sought after materials, including in- and out-of-print books, journals, newspapers, magazines, images, blogs and ebooks. For more information, visit www.copyright.com.



Feb 02, 2013 at 04:40 PM





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