gschlact Offline Upload & Sell: Off
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p.1 #15 · p.1 #15 · Question about needing permission to publish for profit | |
obscure wrote:
It is going to depend on you states interpretation of "commercial use". An artist or their agent selling a photograph isn't "commercial use" which is defined in most states as use (not sale) of an image to promote a service/company/product or cause. As such no permission/release would be needed. In the RJ Reynolds case quoted above the company was using the image to promote their products and as such permission was needed. Having said that, that case was unusual as it revolved around the likeness of a vehicle (not normally protected by image rights). The court ruled that the car design was so distinctive and had been used for so long that it was a part of the drivers likeness.
Of course none of that will stop a big driver/team from suing you just to force you to stop....Show more →
I agree that the calendar would not be deemed commercial use, unless it was used by the racetrack. If it is just sold by you as art or just as a themed calendar it is not commercial use.
However, commercial use is not the only reason that necessitates a Release. If you have personal gain (make money) the right to Publicity will likely require a Release if you take advantage of a person's reputation, prestige, or other value associated with him. A decent litmus test, would a different item or person's likeness have equally served in the calendar, or was there an advantage to using that one person/car?
In the case of the calendar with 12 cars, it would be harder to prove that the 1 driver bringing suit created the gain for you. However it could be a coin toss and judged either way. This also is true for any Trademark reproduction. Did the trademark add value to your reproduction.? If so, then release is necessary.
Here is another example where it could be even more of a gray area:
Say you were at a race and you got a shot of a wicked crash of a known dirver/car flipping in the air. Would you be allowed to sell photos of it stand alone? On one hand you have right to publicity, but on the other it might be able to be deemed editorial or newsworthy as an event that occurred at a public event? Would this trump publicity right, or does the photo need to exist and be deemed part of and editorial media even though there was a caption with date, location and description of who and what is happening?
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