usage issues/lawsuit in Israel

<p>Today in our radio, a street story. Here it is:</p>

An overweight woman was photographed in the street ( there were not any reference who the photographer was). The photo was screened on a TV program about overweight. The woman sued the TV station, telling them that they should have asked her permission to use her photograph. The first court rejected her claim, the second accepted the claim, and the verdict ordered the TV station to pay the woman $ 20.000 indemnities. I did not see the program, so I don't know how they have used her photo, but she has probably well recognized herself...<P>

 

What do you think the solution , what the photographer should do in a situation like that?

( he probably did not know the woman personally ,just a street photo that was later on used in this way.)<P>

 

[Moderator's note: Title changed to reflect the content. It wasn't an update about street photography.]

<p>Just curious Pnina, what nation?</p>

Here, whenever TV stations run news segments on obesity issues, video from the street to support the story is

usually (always?) below the neck, and/or from the back.

<p>Barry, it was in Israel, and usually I know that photographers are very carful, but as she sued the TV.... I assume she has recognized herself.</p>

 

<blockquote>

<p>What do you think the solution , what the photographer should do in a situation like that?</p>

</blockquote>

<p>I don't think the photographer should do anything. It's up to the person or entity that publishes the picture as (just as this case suggests) they are the ones answerable.</p>

<p>Pnina, I feel like a total ejit, not bothering to look at the title of the thread. some observant photographer I:)<br>

I think you have to look at Isreali civil law, which apparantly is divided enough that it took a couple of trys through the court system to get a ruling. In the States, generally, an image used for editorial purposes, as long as it doesn't libel a person, does not need an individual's permission. But different countries fall in different places on that issue. A blunt example would be a photograph of a person with a caption saying bank robber caught, when it's knowingly not the case. But, normally, an image of an individual even if that person recognizes themselves, is not considered a "commercial" use in the States. An interesting example is photogarph Philip Lorca diCorcia. He prevailed in a case in NY where he was sued by an Hassidic Jew for showing his picture at an exhibit. The photo was taken without the man's permission and he sued that it violated his religious rights. The case was dismissed in that the judge found the photo was art, not commerce (even though copies of it sold for thousands of dollars apiece) and therefore protected by the 1st Amendment (free speach) of the U.S. Constitution. So it depends on the indivual legal system and court precedents.<br>

Hope that helps. Where in Isreal do you live? Tel-Aviv?</p>

<p>Barry, I changed the title, so not noticing the location when you first posted is not evidence of your idiocy. You'll have to take responsibility for any other examples of your idiocy, though. ; )</p>

<p>Brad, offers a workable solution to those type of situations, but I also believe the station chose to publish. Perhaps, if you feel as a photographer that may take a photo and you may be exposed to liability, that when you work with a magazine or station, they sign some kind of idemnity agreement where they will be responsible for using your photograph.</p>

<p>Don't worry Mike, there will be ample opportunity.</p>

<p>Mike, thanks for changing the title, much better than mine... ;-))</p>

<p>Barry don't blame yourself.....Sorry for not writing the country's name in the first place.</p>

<p>Brad, as I did not see the program, and I wondered , because so many times street photographers( mostly professionals) take photos in the street and they are shown in newspapers and magazines, and not always ,naturally , one can ask permission ....</p>

<p>Barry, thanks for your nice explanation and example.It really interests me and I will look deeper into that legal procedure. I know that in the past a well known Israeli street photographer ,that works for a well known newspaper , was sued with the newspaper he works for , and both lost the case and paid money. So it is interesting how it is done in the USA and other countries. I live not far from Tel Aviv in a city , about 20 minutes by car from TA.</p>

<p>Thanks all of you for your answers and information.</p>

<p>Barry,<br>

From what I remember of the diCorcia case, the guy whose photo was taken, walked through the middle of the photographer's elaborate setup. in which everything, including the camera, was visible. The guy should have known that his picture was going to be taken, or that there was a strong possibility that his photo was going to be taken. In other words, he couldn't plead ignorance.</p>

<p>Pnina, keep us posted on this please.</p>

 

>>> The guy should have known that his picture was going to be taken, or that there was a strong possibility that his

photo was going to be taken.

 

That's not the issue. The subject claimed his photo was being used for commercial purposes and advertising. And diCorcia

maintained it was artistic expression, which is protected. The lawsuit was ultimately dismissed for being untimely filed.

<p>Mikal, I will, if there will be more than that story in the radio, no more so far in the written papers and TV stations.</p>

<p>A couple clarifications about the diCorcia litigation:</p>

<p>1. Brad is correct about the resolution of the diCorcia case: Ultimately diCorcia (the photographer) prevailed not on the merits (though a lower court granted summary judgment along the lines Barry outlined) but because the New York Court of Appeals, which ironically is New York's highest court, held that it was filed too late -- after the statute of limitations had run.</p>

<p>2. Mikal is actually mistaken about the set-up in the diCorcia case. The subject's awareness was not at issue (as Brad pointed out), but the elaborate lighting/camera set-up was such that <em>"[n]one of those photographed were aware that diCorcia had taken their picture." </em> The plaintiff, a man named Nussenzweig, learned only 4 years later that he had been photographed and that his photo had been part of an exhibit, etc. Hence the late filing, hence the dismissal based upon the applicable statute of limitations.</p>

<p>Quoted language (italics mine) is from the first paragraph of the Court of Appeals' opinion, found here:<br>

http://www.law.cornell.edu/nyctap/I07_0144.htm</p>

<p>The more interesting substantive opinion was one that came earlier, from the lower court (ironically called the Supreme Court in New York legal nomenclature). The trial judge did address the more substantive issues:<br>

http://www.ncac.org/art-law/op-dicorcia.cfm</p>

<p>I got my info from the quick look on Wiki. But the statutte of limits ruling is wierd to me. Was it because suit was brought 4 years after photo was taken? Or was it because after he found out the Photo was taken or being used that he then failed to file timely? doesn't the statutte state it begins running when the Plaintiff knew or should have known? anyways, we digress:)</p>

<p>On the limitations issue: Plaintiff sued under a New York law that has a one-year statute of limitations. The question is when that one year begins.</p>

<p>There had been some conflicting rulings in the courts below, with some courts holding that the one-year limitation refers to one year after the most recent publication of the complained-of material. </p>

<p>The Court of Appeal (again, that's the state's highest court) held that the one year begins at the first publication, not the most recent, and in any case not when plaintiff learned or could have learned of the publication.</p>

<p>But you're right: we digress. :)</p>

>>> The Court of Appeal (again, that's the state's highest court) held that the one year begins at the first publication, not

the most recent, and in any case not when plaintiff learned or could have learned of the publication.

 

From talking to a media arts attorney, that's how it works here in California as well.

<p>May be true for media, and we may be talking about interprettion of the same issue, but geneally in tort in Calif. limitations run when the person knew or should have known. So what Brad is saying, in CA knowledge is imputed to occur when the photo is first published. That is probably based on case law precedents. </p>

<p>I stand corrected. Thank you.</p>

<p>Pnina, what was the court ruling? Was it commercial use, violation of privacy or something else? And BTW was the photographer on assignment or it was just a stock photograph?</p>

<p>Sam, I looked for answers for all these questions, but the only details were in the radio and nowhere else ( to my disappointment....)What they said was that the first instance of the court rejected her clain and the second instance accepted it,and ordered the TV station to pay her indemnity. As it is important I tried to reach the artist league lawyer( which I'm a member of, and I hope he may know details, but did not reached him yet). If I will have more information I will let you all know about.</p>