Home · Register · Software · Software · Join Upload & Sell

Moderated by: Fred Miranda
Username  

Sports Corner Rules
Sports Corner Resource
  

FM Forums | Sports Corner | Join Upload & Sell

1      
2
       end
  

Legal Questions around shooting surfing, skateboarding
  
 
RussHons
Offline
• •
Upload & Sell: On
p.2 #1 · p.2 #1 · Legal Questions around shooting surfing, skateboarding


rw11 wrote:
Russ, You have a lot of mistakes above. Consult an IP attorney before posting any images is my advice to you.


I work with attorney's every day, I'm curious what you consider a mistake, and what state are you?

I shoot sports mainly, so I post photos of athletes known and unknown virtually every day, other than when certain contracts prohibit it.



May 31, 2017 at 08:01 PM
rw11
Online
• • • •
Upload & Sell: Off
p.2 #2 · p.2 #2 · Legal Questions around shooting surfing, skateboarding


are they IP attorneys?

suppose you shoot a woman surfing; she is falling at the time and you post the pic of the yard sale which gets a lot of press

she is a starlet and is trying out for a surfing movie called Beach Blanket Bongo with her character as a champ surfer - she is then denied the role & sues claiming your photo's publicity harmed her chances at the role



Jun 01, 2017 at 04:13 AM
RussHons
Offline
• •
Upload & Sell: On
p.2 #3 · p.2 #3 · Legal Questions around shooting surfing, skateboarding


I'm not sure where you are from, but here in the US if she was out in public and made her famous fall, and I was on a public beach and happened to capture it, it wouldn't matter who she is, I could still post or display it, or even sell it for editorial use to TMZ or USA Today, etc.

I don't think we are going to agree on this topic. If you don't feel comfortable posting photos, that's your right not to. Have a great day.
Russ

rw11 wrote:
are they IP attorneys?

suppose you shoot a woman surfing; she is falling at the time and you post the pic of the yard sale which gets a lot of press

she is a starlet and is trying out for a surfing movie called Beach Blanket Bongo with her character as a champ surfer - she is then denied the role & sues claiming your photo's publicity harmed her chances at the role




Jun 01, 2017 at 04:21 AM
Littleguy
Offline
• • •
Upload & Sell: Off
p.2 #4 · p.2 #4 · Legal Questions around shooting surfing, skateboarding


Well - its never that simple.

The image itself is rarely the problem - unless you shot it at a private location. Its the usage that's the problem. The OP stated that he wanted to use the images to promote his business. That usage is strictly prohibited without a release.

Editorial usage is protected by the 1st Amendment but there is a huge grey area around using images on a webpage that promotes your photography business. What some call a portfolio webpage, others can call promotion / endorsement of a service...how about a watermark on a photo - is that just attribution for the photographer or is that promotion / endorsement of a service? - I don't have the answer to that - maybe your legal friends have but I believe that was what RW11 was trying to address.

Here is what a stock image site states about editorial vs commerical usage of photos you license from them.
https://www.shutterstock.com/blog/2010/05/editorial-vs-commercial-images/

"Q: What’s the difference between Editorial and Commercial stock photography?


A: Images labeled “Editorial Use Only” cannot be used for commercial purposes. An editorial image can only be used to illustrate a news-related story – not to sell or promote a product, service or idea. This rules out most websites (with the exception of news sites)."


RussHons wrote:
I'm not sure where you are from, but here in the US if she was out in public and made her famous fall, and I was on a public beach and happened to capture it, it wouldn't matter who she is, I could still post or display it, or even sell it for editorial use to TMZ or USA Today, etc.

I don't think we are going to agree on this topic. If you don't feel comfortable posting photos, that's your right not to. Have a great day.
Russ





Jun 01, 2017 at 04:53 PM
rw11
Online
• • • •
Upload & Sell: Off
p.2 #5 · p.2 #5 · Legal Questions around shooting surfing, skateboarding


RussHons is confusing the right to take a photo with publishing it. Little guy gives a good summary.


False Light is just one problem:
https://en.wikipedia.org/wiki/False_light

Now, to win there would have to be proof of actual malice. To bankrupt you there would not be that need.

Someone mentioned frivolous lawsuits above - that is a very high std. for yo to prove, not to mention the attorneys fees you'd pay.

OTOH, it would be rare that you get into a legal fight if you are on public property (can you prove it??). Written permission to shoot sports events should go a long way to limit or remove any risk too.

But everybody who posts on Pinterest, etc. is taking a risk if a person or entity is identifiable.



Edited on Jun 01, 2017 at 10:05 PM · View previous versions



Jun 01, 2017 at 08:22 PM
PureMichigan
Offline
• •
Upload & Sell: On
p.2 #6 · p.2 #6 · Legal Questions around shooting surfing, skateboarding


This is an immensely nuanced and complicated area .. whenever I see discussions about this topic I'm reminded of this case in NYC a few years ago. It's instructive and worth revisiting for those missed it. In short, a photograher secretly photographed his neighbors through the windows of their apartments and created an exhibition/book on the topic. He was sued (inevitably) and the ruling from the judge was:

" .... that the photographs did not break New York State civil rights laws and were protected under the First Amendment. “An artist may create and sell a work of art that resembles an individual without his or her written consent,” she wrote. The plaintiffs appealed, only to have Judge Rakower’s ruling unanimously upheld and reiterated by the appeals court this month."

For the full story ...

https://hyperallergic.com/200601/artist-who-furtively-photographed-his-neighbors-wins-in-court-again/




Jun 01, 2017 at 09:17 PM
Craig Gillette
Offline
• • • •
Upload & Sell: Off
p.2 #7 · p.2 #7 · Legal Questions around shooting surfing, skateboarding


Littleguy wrote:
2 Major areas to look out for:

1) Copyright law - most photographers already know about this - US federal law, so same across the states.

2) Rights of Publicity and Privacy - this is where the model release and commerical use comes into play - oh yeah - its not federal law, its state law so every state is different.

The other area of concern - I have never found a legal definition of commerical use - its all case law. So it changes from time to time. Some people argue that having it on your website is commerical use because your
...Show more

The important part here is that privacy/publicity law varies from state to state and country. For example, here's a reference for California. It might be handy because there are surfers in California. OTOH, California also has a lot of celebrities, actors, etc., who are very in tune to the value of their persona or likeness, etc., so it might be a little stricter, etc., than other states. But a search on right of publicity privacy by state or country name should bring up some authoritative answers.

http://corporate.findlaw.com/litigation-disputes/practitioner-s-guide-to-california-right-of-publicity-law.html




Jun 01, 2017 at 10:50 PM
Littleguy
Offline
• • •
Upload & Sell: Off
p.2 #8 · p.2 #8 · Legal Questions around shooting surfing, skateboarding


An interesting case indeed. I do remember it and I believe they used the Works of Art defense being protected by the US 1st Amendment against the NY state privacy laws.

Here is the actual appeals court reasoning - I always like to go to the source rather than read someone's else take on it :-)

http://law.justia.com/cases/new-york/appellate-division-first-department/2015/651826-13-12998.html

I cannot find it now but I remember reading something about what constitutes a Work of Art - it had something to do with limited production (e.g. it had to be a limited run of prints - something like no more than 50 prints or some small number, sold at galleries only or some other limited distribution method - so for us who sell digital files on an unlimited basis and through the web - don't think the Works of Art defense with work for most of us.

PureMichigan wrote:
This is an immensely nuanced and complicated area .. whenever I see discussions about this topic I'm reminded of this case in NYC a few years ago. It's instructive and worth revisiting for those missed it. In short, a photograher secretly photographed his neighbors through the windows of their apartments and created an exhibition/book on the topic. He was sued (inevitably) and the ruling from the judge was:

" .... that the photographs did not break New York State civil rights laws and were protected under the First Amendment. “An artist may create and sell a work of art that
...Show more




Jun 02, 2017 at 02:25 PM
Craig Gillette
Offline
• • • •
Upload & Sell: Off
p.2 #9 · p.2 #9 · Legal Questions around shooting surfing, skateboarding


There is a definition in the copyright law about a "work of visual art" that has some limits on numbered copies. But while I found it in the definitions, I'm not sure where it is otherwise actually addressed in some way.

Another interesting case, and not necessarily for what is sometimes said about it is the DiCorcia v Nussensweig (sp??). It addresses a case which arose out of a photo taken in public. It's worth reading the case and the arguments and appeal decisions, etc. because there are a variety of nuances both specific to new York law and some broader appeals to common law, etc., IIRC. Again one should go to the source court documents and not necessarily take forum and opinion pieces.



Jun 02, 2017 at 09:27 PM
 

Search in Used Dept. 



Littleguy
Offline
• • •
Upload & Sell: Off
p.2 #10 · p.2 #10 · Legal Questions around shooting surfing, skateboarding


Nussenzweig v DiCorcia didn't really bring anything new to the table as the action was statue barred anyways.

But the court did comment on what is considered "Art"

"Even while recognizing art as exempted from the reach of New York's Privacy laws, the problem of sorting out what may or may not legally be "art" remains a difficult one. Some states for example, limit art to transformative and not duplicative likenesses. See for example: Comedy II Publications, Inc. v. Gary Saderup, Inc., 25 Cal 4th 387 (2001) cert den 534 US 1078 (2002) [only transformative art was entitled to 1st amendment protection against California]. Other states have limited exempted use to original works of fine art, but not to distribution of reproductions. Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 250 GA 135, 296 SE2d 697 (Sup Ct 1982).

New York has been fairly liberal in its protection of what constitutes art. Altbach v. Kulon, supra; Simeonov v. Tiegs, supra; Hoepker v. Kruger, supra. In Hoepker v. Kruger, the [*7]court recognized that art can be sold, at least in limited editions, and still retain its artistic character. This analysis recognizes that first amendment protection of art is not limited to only starving artists. The analysis in Hoepker is consistent with the primary purpose/ incidental purpose doctrines, that have developed in connection with the newsworthy exemptions to privacy protections. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes. DiGregorio v. CBS, Inc., 123 Misc 2d 491 (Sup Ct NY Co 1984).

In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community."

Source:
http://law.justia.com/cases/new-york/other-courts/2006/2006-50171.html

Again what is "Art" changes from state to state so even if we all became Fine Art Photographers some states only offer protection for original works and not reproductions according to the above 2006 ruling.

Craig Gillette wrote:
There is a definition in the copyright law about a "work of visual art" that has some limits on numbered copies. But while I found it in the definitions, I'm not sure where it is otherwise actually addressed in some way.

Another interesting case, and not necessarily for what is sometimes said about it is the DiCorcia v Nussensweig (sp??). It addresses a case which arose out of a photo taken in public. It's worth reading the case and the arguments and appeal decisions, etc. because there are a variety of nuances both specific to new York law and
...Show more




Jun 03, 2017 at 04:08 AM
Craig Gillette
Offline
• • • •
Upload & Sell: Off
p.2 #11 · p.2 #11 · Legal Questions around shooting surfing, skateboarding


Right, but I found the discussions of how editorial, art and advertising types of uses could be worked in NY pretty interesting. That image ended up getting used thousands of times and generated no small amount of money or at least helped to along with the rest of the project.


Jun 03, 2017 at 05:03 AM
glort
Offline
• • • •
Upload & Sell: Off
p.2 #12 · p.2 #12 · Legal Questions around shooting surfing, skateboarding



Asking a legal question on a photo forum is about as reliable as asking a Lawyer about Photography.



Jun 04, 2017 at 07:30 AM
gschlact
Offline
• • •
Upload & Sell: Off
p.2 #13 · p.2 #13 · Legal Questions around shooting surfing, skateboarding


Littleguy wrote:
An interesting case indeed. I do remember it and I believe they used the Works of Art defense being protected by the US 1st Amendment against the NY state privacy laws.

Here is the actual appeals court reasoning - I always like to go to the source rather than read someone's else take on it :-)

http://law.justia.com/cases/new-york/appellate-division-first-department/2015/651826-13-12998.html

I cannot find it now but I remember reading something about what constitutes a Work of Art - it had something to do with limited production (e.g. it had to be a limited run of prints - something like no more than 50 prints or some
...Show more

This was an interesting read.
Ultimately, the defendants lost because Art,a 1st amendment right of expression, trumped individual's right to privacy, despite unprecedented means of obtaining likeness /photograph.

However, what was not tested in the case, was the individuals Right of Publicity (likeness) vs Art.
In my opinion, Art for display would be allowed as a first amendment expression right. Realizing, commercial use or endorsement is excluded, and not applicable to this case. However, Right Of Privacy has additional requirements, one of which is lack of financial gain from the Use of Likeness by a dependent.

[Civil Code section 3344, subdivision (a), provides in pertinent part as follows: "Any person who knowingly uses another's name, photograph, or likeness, in any manner, for purposes of advertising products, merchandise, goods, or services, or for purposes of solicitation of purchases of products ... without such person's prior consent ... shall be liable for any damages sustained by the person ... injured as a result thereof."]

In my opinion, while the artist might have been legally allowed to display the Art that included the intruding photographs, he would not be allowed to sell those images (especially beyond the original copy) that were sold based on the Likeness in them as the primary / intended subject on display.

JMHO.



Jun 04, 2017 at 08:15 PM
Littleguy
Offline
• • •
Upload & Sell: Off
p.2 #14 · p.2 #14 · Legal Questions around shooting surfing, skateboarding


gschlact wrote:
This was an interesting read.
Ultimately, the defendants lost because Art,a 1st amendment right of expression, trumped individual's right to privacy, despite unprecedented means of obtaining likeness /photograph.

However, what was not tested in the case, was the individuals Right of Publicity (likeness) vs Art.
In my opinion, Art for display would be allowed as a first amendment expression right. Realizing, commercial use or endorsement is excluded, and not applicable to this case. However, Right Of Privacy has additional requirements, one of which is lack of financial gain from the Use of Likeness by a dependent.

[Civil Code section 3344, subdivision (a), provides in
...Show more

He lost for many reasons - it was not a good test case for Rights of Privacy. The reason that the NY courts didn't address Rights of Publicity was because that Civic code 3344 is a California State law and the case was handled at the NY state court level.

As stated before - right of privacy / publicity are state laws and are different state to state - some states have them some don't. But the usual defense against them is the 1st Amendment - Federal law - if you can cloak yourself around it - Federal laws will trump State laws.

Here is a dated analysis of it
http://www.dmlp.org/legal-guide/california-right-publicity-law



Jun 05, 2017 at 02:18 PM
rw11
Online
• • • •
Upload & Sell: Off
p.2 #15 · p.2 #15 · Legal Questions around shooting surfing, skateboarding


That URL looks pretty good, dated or not, it is worth a perusal by everyone with a camera...


Jun 05, 2017 at 06:31 PM
gnjphotography
Offline
• •
Upload & Sell: Off
p.2 #16 · p.2 #16 · Legal Questions around shooting surfing, skateboarding



And if they are a minor.
rw11 wrote:
actually... you could get into trouble if the subject in the photo is identifiable

more likely if famous

depends on where too




Jun 18, 2017 at 06:17 AM
rw11
Online
• • • •
Upload & Sell: Off
p.2 #17 · p.2 #17 · Legal Questions around shooting surfing, skateboarding


good point

we should also add the common but illegal practice of shooting on RR tracks...



Jun 18, 2017 at 06:53 PM
Mikehit
Offline
• •
Upload & Sell: On
p.2 #18 · p.2 #18 · Legal Questions around shooting surfing, skateboarding


rw11 wrote:
RussHons is confusing the right to take a photo with publishing it. Little guy gives a good summary.

False Light is just one problem:
https://en.wikipedia.org/wiki/False_light

Now, to win there would have to be proof of actual malice. To bankrupt you there would not be that need.

Someone mentioned frivolous lawsuits above - that is a very high std. for yo to prove, not to mention the attorneys fees you'd pay.

OTOH, it would be rare that you get into a legal fight if you are on public property (can you prove it??). Written permission to shoot sports events should go a long way to limit
...Show more

Where do you get your information? Are you a lawyer? Consulted a lawyer'? Do you have personal experience?
I note that all your comments are along the lines of 'could'...'can'...'depends on where you live'. That sort of advice is worth squat in the context of the OP - everybody knows what's possible' but the OP asked for specific advice.

About the only solid thing you have said is if someone is concerned to consult an IP lawyer because the only to things at issue here are (a) whether the use of pictures can be considered commercial, and (b) whether the picture somehow defames the person in the picture.



Jun 19, 2017 at 10:48 AM
1      
2
       end






FM Forums | Sports Corner | Join Upload & Sell

1      
2
       end
    
 

You are not logged in. Login or Register

Username     Reset password