Is a release necessary?

[maxasst]

I am volunteering to take pictures at a school fundraiser auction

this weekend. The images will be used for the school's website and

yearbook. I will inform the subjects that I'm taking pictures for

the school. Since it is an event by invitation, is it considered

private? It will be held at a public golf course facility. Would

obtaining a release be necessary?

[roger krueger]

Where you are doesn't matter (unless there's an expectation of privacy, like in someone's

home), it's how you're going to use it. School website and yearbook fall very firmly into the

"editorial" category, and no release is legally required. But some schools have hoops to

jump through before photos of students can be used--be sure you've communicated with

the yearbook and website people on what school policies are.

[digitmstr]

OTOH, since the School owns the images (I assume when you volunteered you did so agreeing to such terms) it is their responsibility to obtain releases, if necessary.

[digitmstr]

If you own the images then, it's on you :)

[mark feldstein]

Man, I just don't know where people come up with their responses some times. Editorial work requires a release in about 99% of the cases and this ain't in the 1%, e.g., for news photography, i.e., great interest to the public or a public right to know. "Public golf course, doesn't necessarily mean that it's owned by the public or a federal, state, county or municipal entity." Many private concerns own and operate "public" golf courses, which essentially means they are open generally to the public and do not require a membership. They're still private property, however and merely providing access to the public doesn't mean it's a public facility. In other words, "public course" more often than not still means private property.

 

Now, I won't go into a dissertation of the law on publishing. I will, however, point out that notwithstanding the use of the photo, in this case it sounds non-commercial, they still require consent of the people to be photographed and to have the photos published. And understand I'm not talking about simply taking the photographs, I'm talking about publishing...how they're used. Why does this require consent / release from the individual(s) depicted in the photos?

 

Well, there are four kinds of privacy rights included in the tort of defamation. Three violations of privacy may occur with (1) the unconsented appropriation of name or likeness and (2) publicity given to private life and (3) portraying someone in a false light. Assuming this is not for commercial use (like advertising a product or unless the yearbooks are FOR SALE then #1 might apply) but in this case 2 and 3 may get the photographer (and publisher, including web site owners) sued for defamation.

 

Two quick examples: #2 is simply an invasion of privacy or the right to be left alone, in a private place or a place where someone has a reasonable expectation of privacy, like on private property. #3 is really easy. Let's say you photograph someone who's only appears to have had a couple of drinks, or is dancing with someone who, isn't their spouse. Catch my drift? Get a release.

 

The easiest way to handle this is to have the event's sponsor post a sign at the entrance to the event that provides wording to the effect that: "Entry to this event constitutes your express and implied consent to be photographed and to have those photographs published in any way for any purpose, whether commercial or editorial." That release gets the photographer off the hook for defamation and invasion of privacy, and also let's the photographer (who presumably retains the usage rights) to publish the photographs for any purpose or sell them for commercial use.

 

So, get the picture? Mark

[digitmstr]

>>post a sign at the entrance<<

 

A sign is not the same as a >signed< release.

 

Also, as I have said, it is presumed that the school, not the photographer, owns the images and the right (and therefore the relative and consequential legal burden) of publication.

 

If the photographer owns the images than NOTHING other than signed releases will do.

 

A posted sign is NO clear evidence in court that everyone saw it or even agreed to it. Furthermore, other issues are at play: some people coming to the fundraiser may indeed not be willing to be photographed. A sign would in effect >discriminate< against those people willing to donate but, not willing to be photographed as it would *force* them out. The school would potentially drive away funds and possibly be legally at risk as well.

 

The easiest way would be to have releases at the entrance and have people fill in their name, address (and their childrens') and sign them. Those who don't want to have their picture published will not sign the release. Merely taking their picture is not a problem. Later, the pictures will be matched with the signed releases and published accordingly.

 

In practice, I don't think anyone would object, after all is for their school.

[roger krueger]

Giampero: He owns the images unless he explicitly signs the copyright away, and even

then he could be held liable in some types of legal dispute. I have a hard time imagining

that a school volunteer situation has any written agreement about rights at all.

 

Mark: I'm not sure where you're getting your info. Do deep-pockets lawsuit targets often

insist on releases when there's little/no need? Sure--CYA. Plus, insisting on releases for

everything means they don't have to worry about situations addressed in #2 and #3

getting misjudged by some underling, and it helps get the frivolous lawsuits--inevitable

when you're a deep-pockets--dismissed quickly. But that has little bearing on the poster's

situation.

 

re: #1 Just because something is offered for sale doesn't negate it being editorial use--my

newspaper isn't free, my Garry Winogrand books weren't free, but they're still both firmly

editorial, and don't need a release under this arm of privacy law.

 

re: #2, your definition of expectation of privacy is far broader than I can find any

justification for. Being on private property does NOT give you an expectation of privacy.

Being at your home does, being in special circumstances like a restroom or locker room

does too. But being in the company of dozens of people on private premises that aren't

someone's home offers zero expectation of privacy from photography absent special

circumstances.

 

re: #3 Sure, if you catch someone doing something embarrassing but not of legitimate

public interest (although for a yearbook the term "public" would likely mean the intended

audience, far different from the "general public" test for a newspaper) you may want to not

use it. Most of these are really obvious--humiliating ot mocking someone

photographically is just not O.K. in many instances.

 

Sure, there are some unlikely gotchas out there, like the aforementioned dancing with the

wrong partner, where you'd have no way of knowing the photo was a problem, but these

are all in the much-greater-chance-to-win-the-lotto category.

[mark feldstein]

Ok, first, as to what Giampiero said:

 

<<<A sign is not the same as a >signed< release. >>>

 

There are different types of consent. Express and implied. Under the circumstances he outlined, an implied consent, by posting the notice clearly at the entry to the event, would in all likelihood, be deemed implied and therefore valid consent to publish the photographs.

 

<<<<<Also, as I have said, it is presumed that the school, not the photographer, owns the images and the right (and therefore the relative and consequential legal burden) of publication. >>>>

 

Sorry but you're incorrect here too. Under the U.S. Copyright Act of 1978 and the subsequent (Sonny) Buono amendments, the photographer owns the rights at the time the image is created, UNLESS the work is performed under a specific "work for hire agreement" whereupon the photographer expressly surrenders his/her copyright.

If the photographer owns the images than NOTHING other than signed releases will do.

 

<<<<A posted sign is NO clear evidence in court that everyone saw it or even agreed to it. Furthermore, other issues are at play: some people coming to the fundraiser may indeed not be willing to be photographed.>>>>>

 

Again, I refer you to the distinctions between express and implied consent. There's also a difference between types of notification. Posting a sign at an entrance or even printing it on the back of a ticket stub, along with other disclaimers or non-liability statements is construed as sufficient notice at events where photography is occurring.

 

<<<<A sign would in effect >discriminate< against those people willing to donate but, not willing to be photographed as it would *force* them out. The school would potentially drive away funds and possibly be legally at risk as well. >>>>

 

Well, now in terms of discrimination, exactly what portion of the U.S. Constitution or which Civil Rights Act would that violate, exactly? Are you saying there is a federally protected interest or right to donate without being photographed? Hmmmm. I must've missed that one in law school. <G> And what would the school be at risk for? A law suit from someone who is denied access because they didn't consent to be photographed? I don't think so. As far as I know, that doesn't present grounds for a cause of action under any state or federal law I've heard of.

 

As to losing funds? Perhaps. However, for sake argument (which at this point is all this is about), sure, people would have the option not to attend but still to make a contribution to the school yearbook. Or, OTOH, they could always just ask for a refund. Depends, I guess, on what the price of the ticket includes.

 

<<<The easiest way would be to have releases at the entrance and have people fill in their name, address (and their childrens') and sign them. Those who don't want to have their picture published will not sign the release.>>>

 

 

<<<<<Merely taking their picture is not a problem. Later, the pictures will be matched with the signed releases and published accordingly. >>>>>

 

As I said earlier, and agree, taking photographs isn't the issue. It's publishing them. Your solution, however, is a bit awkward I think. I suppose if the event only hosted a couple of dozen people, that'd be a good way to go. When you have hundreds or, at major concerts, thousands of attendees, what you're proposing is virtually impossible as it presumes that someone or some group of people would be able to recognize everyone in order to match them with the release. I think that's pretty tough. Implied consent is a much simpler way to go.

 

<<<<In practice, I don't think anyone would object, after all is for their school.>>>>>

 

You may certainly be absolutely right about that, and then, of course, they shouldn't have a problem over the implied consent to be photographed either. ;.)) Mark

[Spearhead]

Get the school to have a lawyer give an opinion. Most of what's on here will have the value of what it cost you to get it. Laws on this vary by state, so even on that grounds, people are giving you bad advice.

[mark feldstein]

Alrighty Roger, here's my somewhat lighthearted response to what you mentioned: I should note first though, that I answered the original question. he didn't ask anything about who gets sued for what when "if" happens. I addressed the venue question and whether a release is required for publication. The person didn't ask about deep pockets or anything along those lines and this isn't a course in civil procedure or tort law. My information comes from my undergraduate training as a photojournalist studying the laws of mass communications, law school, 35 years of being a working photojournalist for magazines, newspapers, wire services and corporate publications, continuing legal education in federal constitutional law, and ongoing photographic education including courses with Ken Koberly at SF State University, teaching and preparing for courses I've taught at the university level, and oh, reading the weekly appellate court case reporters of N.Y., Illinois, California and the U.S. Supreme Court.

 

Please don't take offense at this Roger, but I think you have a few misimpressions about rights to privacy and editorial usage. Other than to say that it seems you somehow think editorial usage, whether compensated or not, and newspaper publication is exempt from the requirement of having a model release is simply not correct. I won't address that here. And I won't get into discussing frivolous lawsuits you mentioned other than to say when someone asks me whether or not they can be sued for something, my response is usually "Yes, but will they prevail is a different matter."

 

Regarding your comment: <<<<<your definition of expectation of privacy is far broader than I can find any justification for. Being on private property does NOT give you an expectation of privacy. Being at your home does, being in special circumstances like a restroom or locker room does too.

 

Now kindly look back at what I wrote. I never offered a definition of "expectation of privacy". But being on private property, aside from a home or restroom etc., ain't the only criteria. The law has in fact extended the zone of privacy and therefore the expectations to privacy, into many areas, including those on private property other than ones own.

 

The part that could get you into very shallow water though, is when you said: <<<<<<But being in the company of dozens of people on private premises that aren't someone's home offers zero expectation of privacy from photography absent special circumstances>>>> This is really a long reach because I don't know what special circumstances means to you in particular. And we could hypothesize on that for quite awhile. The better, and really appropriate answer is that, being on private premises that aren't someones home under a number of circumstances, may, depending on the circumstances, provide an average person with a reasonable or even an increased expectation of privacy.

 

Beyond all that, my answer to the original question not only briefly mentions the law of privacy (on which entire volumes have been written) and the tort of defamation and a recommended a simple, effective solution for dealing with the situation they have. Nothing more or less.

 

And, BTW, I highly recommend that Mr. or Ms. Moreno talk to a lawyer in their area who knows this type of law and can render an opinion based upon the state law of their own jurisdiction, which is likely to be the appropriate, conservative approach not founded on the odds of being sued. The "unlikely gotchas" as you put it, are why one should get releases in the first instance and that's not the issue here anyway. Take it light. Hey, I'm having fun, is everyone else? :>) Mark

[Spearhead]

If anyone is still awake after that, I'll repeat my simple advice - get a lawyer. The qualifications mentioned above hardly make one a lawyer, especially if they are not in the same state, so get some legal advice.

 

However, it's worth pointing out that a release is only necessary if a) a client requests it, or b) you get sued. Hundreds of thousands of yearbooks have been produced without releases. That doesn't mean nobody ever got sued, but it sure is odd that one needs a release given how many have been produced without releases.

[larry_underwood]

Try here:

 

http://www.popphoto.com/article.asp?section_id=4&article_id=609&page_number=1

[craig_gillette]

My district is paying hundreds of thousands of dollars to settle claims, pay for attorneys, etc. I don't think you or I could count on them (the schools) to keep us out of trouble. I think it's extremely low risk but not no risk. You don't know what may go on in the minds of a teenage yearbook staff (or a harried advisor) when it comes to captions, etc.

 

There are plenty of variables that can't be addressed easily but you could discuss with an attorney (and should) if you are nervous about this.

 

I think you could easily carry a simple release (get one from the school??) and use it along with getting the names of the subjects - you want to be able to identify the individuals in the shots, right?

[digitmstr]

Again, as a matter of friendly discussion :)

 

As I have said, from the post it sounds as though he was hired by the school (the fact that he's not getting paid doesn't a priori exclude the work-for-hire clause. We don't know since the post didn't say). Be that as it may, I have already specified that IF he owns the images (and he signed a contract to that effect) then, it's his responsibility.

 

There is discrimination and there is discrimination. In this case, everyone attending the event would, by virtue of the 'implied release', be FORCED to agree to have their pix published or else NOT able to enter. If it's a public school it spells trouble, if it's a private school it also spells trouble. Guaranteed lawsuit. It would be almost as if the school says "have your picture taken and then, you can donate".

 

I used the word "discriminate" not in the Constitutional sense referred to in a post above but, in the very immeditate sense of the situation in which people would be kept out UNLESS agreed to have their picture taken "for any purpose".

 

As far as the 'implied release' there is no sure thing in posting a sign. There are many cases in which plaintiffs have successfully won arguments based on 'signs' (and even the back of tickets and/or receipts). Especially here, where a school fund-raiser is not traditionially tied to FORCING people to have their picture published there is ample room for such liability. Especially the part that says "published in any way for any purpose, whether commercial or editorial" which, BTW, *DOES NOT exclude* for example, montage in other images, dissemination on the net for other purposes, ads for other products (including pornography), etc...

 

I would NOT agree to such worded release, especially if the CONTRACT is with a photographer I don't personally know. And my guess is NONE of the people would either. A fund raiser without people is of course...not much of a success. Also, let's assume that the Photographer has signed a contract with the School and he/she owns the images. The posted sign would then, have to clearly state who the entity is that owns the images, and therefore the releases. the School would implicitly then, be accordingly liable for any wrong-doing of the photographer (if he/she turns out to be a pervert who posts pictures on porno sites on the WWW). Do you think the School wouldn't be liable? Of course, and it would get sued in a split of a sec. if a picture showed up in the wrong place.

 

The reason that even signs posted above check out counters have been successfully argued against is that people can always say "I didn't see it", "I didn't know I'd have to agree to that until after...", "I didn't understand it to mean this and that", etc... It's vague at best.

 

Certainly, arguments are won and lost but, I think the issue here is to AVOID potential issues, not argue about them later, in Court :)

 

If I were the photographer and owned the images nothing short of a signed release would make me release the images to the School or any one. Too much risk! Especially on the WWW, where any one can right click and copy the picture. It would be very hard to defend yourself in court, as the photographer, if a picture of a teenager found its way on a porno site and all you have to say in your defense is "I posted signs at the event".

 

Good luck with that one! :)

[digitmstr]

BTW, great thread everyone!

[digitmstr]

MARK, I am very aware of Copyrights Laws, I file several each month :)

 

That is why I posted an *assumption* of ownership on the part of the school by way of a contractual agreement (see my first post).

 

In my second post I offered the other possibility, where the photographer owns the images, in which case, and I quote myself, "NOTHING short of a signed release will do".

 

Since it wasn't specified we can olny speculate :)

 

In addition, and I know you know this but, for those who may not know, there is a huge difference between owning the images by way of US (or other) Copyrights Laws (whether implied or contractual) and owning the *Publishing* Rights.

 

For those who may not be too familiar, in the US you are automatically protected the moment you create an original body of work (be it images, music, literary works, etc...) by existing US Copyright Laws. The actual filing of the Copyright with the Copyright Office is NOT necessary for the legal ownership but, if you ever have to go to court over such disputes it would be difficult to prove your case (unless you have other compelling evidence as to you original creation's date, ownership, etc...). So, it's a good idea to file (register) your work with the Copyrights Office if you are in the US.

 

However, in many cases, the Publisher owns the right of distribution/publication of such material. That means, if you own the copyright for the images but, have signed exclusive publishing rights to another entity you'll have to respect the terms of that agreement and the publisher must insure proper releases are on file before distributing the work.

 

I offer an example: there is a very well known and very large, musical instrument manufacturer from the East which made these cards containing samples (recorded bits of sounds) to use in some of their electronic keyboards/synthesizers. Of all the 100s of sounds contained in these collections there was a woman scream (yes, a scream) for which, apparently, they didn't have a RELEASE on file.

The woman sued (alleging she never agreed for her voice to be published), made millions, and they had to stop selling the card with her voice in it.

 

Speaking of images: just recently, an actor/model here in the US (not a super-star) but a familiar face to some, just found out that one coffee brand had been using his picture on their packaging without his knowledge and/or consent. He sued, they had no release on file (of course, they never told him they'd be using his headshots), they lost, he won millions.

 

Moral of the story, when in doubt get a SIGNED RELEASE (or a lawyer).

[mike_elek]

life was so much simpler when you could trample on people's rights.

[J.W. Wall]

Sheesh. Mash the shutter button and devil take the hindmost!?!

[dai_hunter]

GOD!!!! It's soooooooooo much easier in the UK where we don't have a general law of privacy. Aside from editorial where newsworthyness and timeliness may be an issue to the publisher but, even then, not strictly applying to incidental inclusion of someone in images shot in de facto public places, three rules apply- You may take and use pictures, virtually unrestricted:

 

IN any public place - the "public place rule"

 

IN any private place to which you (and usually, but not exclusively, the public) are allowed access - the "invitee rule"

 

FROM any public place or other place where the photographer can position himself without committing a tresspass OF any private place in open view from such a vantage point - e.g. of someone sunbathing nude in their garden; or of person "A" getting passionate person "B's" wife in the back yard, a park, or the doorway of a night club... even in a home if they are idiot enough to leave the curtains open while they are doing it. see: "public place" rule

 

In sum, if you can SEE it, you can PHOTOGRAPH it. If you can PHOTOGRAPH it you can USE it. A UK photographer would be hard pressed to get sued for damn near anything - including even any usage short of out-and-out photographic defamation - and here, in the case of the fictional lover of someone else's wife, the truth of the image is a near absolute defence.

 

Commercial appropriation (as a tort) has only been tested to the slighest degree in the UK courts and there is neither law nor precedent so firm as to assure a successful action against a photographer - these cases usually only involve the publisher. Only the rich tend to sue (or can afford to) and such cases as have come to the UK courts involve almost exclusively sports figures and the likes of commercial movie/TV/music personalities, and, more rarely, a political one. The decisions, where they have won, have usually been converted from privacy (the newspaper headline claim), and decided on issues commercial or contractural interference or, as in the case of Naomi Campbell, medical confidentiality (the factual legal claim(s) put to the court). They may sue on privacy claims but those grounds seldom, if ever, dictate the decision of the courts. Nearly the ONLY specific concession to privacy in law occurs in UK copyright law on issues of (commissioned) photos taken for "private and domestic" purposes e.g. portraits and wedding pictures - photographer owns the clear copyright but with restricted use rights. Otherwise one or more persons must take affirmative steps to seclude themselves from view to make such a claim (under other available law.) If they are in the "open@ then they are fair game and considered to have voluntarily diminished their expectation of privacy to a greater or lessor degree.

 

That said, most photographers here DO use some form of release for the principals photographed (e.g. models) in particular anticipatory circumstances for straight commercial (e.g. advertising) usage, but if they are street shooting for commercial use, they wouldn't necessarily bother to get releases from someone only incidentally included (in the photo.) As there is also now no "work for hire doctrine" in the UK (that applies to non-employee contractors,) once they take the photo(s) they own all rights in law - including the right to publish (that is: to exploit the work, with the "private and domestic" exception noted above.)

 

Hunter

[digitmstr]

>>A UK photographer would be hard pressed to get sued for damn near anything<<

 

that's it, I am moving to London :)

[maxasst]

But I'm still taking pictures in good ol' Wisconsin. I need to defuse this a bit. I don't forsee that the legal debates will get that heated, but I must address the importance of the legalities with the principal who recruited me for this event. Our community is tightly knit, the school is a small one which goes only up to 7th grade and the event is a fundraiser so we can build a bigger facility outside of downtown. The parents of the children who attend this school are friends, colleagues or acquaintances. I don't want anyone to turn away from the event so I won't post a sign, but I will identify myself and purpose before taking their pics. I'll turn them over to the school so it becomes school property and inform the school to obtain the releases if they plan on putting the pics anywhere. If the school makes money off the pictures, I'll be happy. I have no control over the website, so I'm clear of any responsibility there. I thank you for all the valuable advice offered on this thread. This law thing really saps time and energy, and really gums up the works for what should be a fun event.

[Spearhead]

It's not nearly as bad as all that. You have to see a lawyer and understand the current laws.

 

For example, in California, invasion of privacy (false light etc) damages are limited to $750. So if the photo was taken legally, is not defamatory, and isn't used to advertise, maximum damages are $750. There is no competent lawyer that will take a case on contingency with $750 in damages, and it makes little sense for anyone to pay a lawyer just to find out if they could win. It's not like the police can come to your house and give you a ticket for $750. Speeding has a far higher chance of payout than any kind of civil suit over a photograph that meets the conditions above.

[mike_elek]

You know what? You'd be better served by claiming equipment failure and just not doing it at all. In all likelihood, no one will complain. However, one lawsuit will bleed you dry. Even if you win, you'll still end up paying. Why even bother.

 

This is why I'd rather shoot a photo of the chair in my back yard.

[digitmstr]

R. Moreno - no need to make thing more complicated than they are.

 

Have a lawyer write a simple contract between you and the School (if they are the sole entity involved in publishing the pictures) that states the following conditions:

 

1) You are doing the work as a non-paid, volunteer for-hire, therefore they shall own the images and any and all publishing rights.

 

2) The School shall solely be responsible for obtaining all releases with regard to use of photos.

 

3) the School shall hold you harmless as to ANY and ALL legal disputes arising from use of photos, including but not limited to civil and criminal liability as well as any damages.

 

4) in the event you get sued in connection with the shoot/images/etc... the School must pay all your legal fees, including advance costs of retainers, etc...

 

5) You will give the school a CD with ALL the images taken. none will be in your possession. Therefore, you are not responsible for what happens to the images after that.

 

Those are the points of protection. A lawyer may think of others but, that's a start.

[dai_hunter]

A quick follow-up to my previous comments to illustrate the effect of the lack of "privacy" law in the UK:

 

A few days ago a guy was convicted of having published and posted nude photos of a F workmate who he had accompanied on a nudist holiday to some far away place where he took nude photos of her.. They had a bust-up in their relationship and he printed off dozens of the images and mailed them to people who know her; put them on bulletin boards at work; stuck copies under car winshield wipers... anywhere he could think to put them in the open.

 

Was he done for "invasion of privacy?" Nope! They charged him with, and convicted him of, criminal harassment... absolutely nothing to do with privacy or defamation. ;-)

 

Hunter