Upload & Sell: Off
| Re: 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.
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 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.)
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 solicitation of a service or product.
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.