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model release for fine art


kevin_b.2

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<p>I am going to a rodeo here in a few weeks, and i want to shoot some photos. I hope to put some in my collection and perhaps even sell them as fine art. My question do I need a model release? I will not sell them to a company for commericial reasons / stock. Also if the rider's face isn't distinguishable is it even needed then? Say his back is turned to the camera or is farther away. I just want to be able to sell / display the print as an fine art photographer.</p>
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<p>I just want to be able to sell / display the print as an fine art photographer.</p>

 

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<p><strong>Selling</strong> and <strong>displaying</strong> constitute two separate and distinct (uses).</p>

<p>Displaying for purposes of self promotion, art galleries rarely require a release.</p>

<p>Selling (MAY) require a release. With the information given, my opinion is that you are safe to sell as a rodeo is a public event with no expectation of privacy.</p>

<p> "Associating" the images to forward an idea, endorse a product or attributing statements could create a problem. (i.e) If your photo of a rider being thrown from the horse had the caption " Fraud in the rodeo"...you might have a problem. Placing the photo with a photo of a bottle of coke, inferring rodeo riders like coke, would get you in trouble with coke and the model. </p>

<p>Check with the rodeo organizers..a simple question will often yield your answer.</p>

<p>No identifiable face?..No, no release will be needed.</p>

<p>Not selling to agencies or publishers? Just on your own?<br>

I see no problem.</p>

<p>Creating a calandar for sale in mass production? I see a problem. :)</p>

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<p>Art is expressive use and protected under the 1st Amendment, as is editorial use. An image can be used to sell itself without a release. Where a release could be needed would be if the image was used to promote either the gallery or yourself. It can be a bit of a fuzzy edge and some states have somewhat different limitations when it comes to advertising. For example, one state (apparently from forum comments, don't recall which one) allows placement of images in a photographer's studio display windows, others might find that to be an advertising use.</p>

<p>I'd not suggest asking the rodeo promoters about releases. One reason is I don't expect them to be up to speed on intellectual property legal issues. However, there may be some advantages to asking about access, etc. It's possible that they will already have a professional on contract so shooting "commercially" (if you expect to sell the images) may be a problem. OTOH, having advance permission/access may reduce the concerns they have about negative issues with animal rights types.</p>

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<p>Do you already have permission to take photos at the rodeo? I've found rodeos are extremely sensitive about photographs being taken, as some are worried that photos may be used against them by animal-rights advocates.</p>
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<blockquote>

<p>"Associating" the images to forward an idea, endorse a product... ...Placing the photo with a photo of a bottle of coke, inferring rodeo riders like coke, would get you in trouble with coke and the model... ...Not selling to agencies or publishers? Just on your own? I see no problem... ...No identifiable face?..No, no release will be needed.</p>

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<p>1) Forwarding ideas? That describes pretty much every photograph that ever existed. We might want to narrow the field here a wee bit.</p>

<p>2) Coke, whether a beverage or a corporation, is not a human being and has no right to privacy which is the issue model releases address.</p>

<p>3) While Coke a/k/a Coca Cola has trademark rights, that doesn't give them authority to forbid every use of a photo that happens to have the trademark in it.</p>

<p>4) Drinking soda is a commonly accepted normal activity. Being associated with enjoying coke is not an activity expected to generate scorn or ridicule which is an element the model would need to prove when asserting a legal action for the use of his likeness unless the use was to promote the product (which is not mentioned in the description above). Now suggesting falsely that someone is using the coke, as in cocaine, would present problems.</p>

<p>5) Selling an image is not a factor as to whether a model release is needed for the image unless the buyer won't buy it without one. That's a business issue as opposed to a legal issue.</p>

<p>6) How an image of a person is used determines whether a release is needed. The same analysis applies whether the use is by a lone person or a gigantic conglomerate.</p>

<p>7) The issue is whether the person is recognizable, not whether the face is shown. Sometimes people can be recognized while facing away from the viewer especially sports figures bearing numbers and/or their names.</p>

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<p><strong>Selling</strong> and <strong>displaying</strong> constitute two separate and distinct (uses).</p>

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<p>The distinctions are irrelevant. See nos. 5 & 6 above.</p>

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<p>I just want to be able to sell / display the print as an fine art</p>

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<p>Fine art is part of so-called editorial use and outside the scope of the invasion of privacy tort of misappropriation (which involves commercial, promotional. endorsement use) and does not require a release unless the use satisfies the legal requirements in any of the three other invasion of privacy torts, namely, false light, intrusion and. disclosure of private facts.</p>

<p>See http://www.rcfp.org/photoguide</p>

<p> </p>

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<blockquote>

<p>3) While Coke a/k/a Coca Cola has trademark rights, that doesn't give them<br /> authority to forbid every use of a photo that happens to have a the trademark<br /> in it.</p>

 

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<p>I didn't say that John.<br>

I said a photo of a person (inferring) that person likes to drink Coke (association) would leave the publisher of said image exposed legally.</p>

<p>A photo with merely Coke in the background with no forwarding of an idea or endorsement by the person in the photo is not a problem.</p>

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<blockquote>

<p>I said a photo of a person (inferring) that person likes to drink Coke (association) would leave the publisher of said image exposed legally. A photo with merely Coke in the background with no forwarding of an idea or endorsement by the person in the photo is not a problem.</p>

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<p>I don't know why you would say this since 'forwarding an idea' via a photo is not a cause of action. If it were, just about every image with a person in it would require permission form the person in it to be shown as some sort of idea or interpretation can be found from what someone is doing, wearing or whatever when seen in a photo. Also, it is not a cause of action to display a picture of someone tending to show or even clearly showing they enjoy or even endorse something. If your theory were true, a musician would need to grant permission for any photo to be shown playing their beloved Gibson Les Paul. All those publishers who showed sports figures, or any person walking down the street, wearing a Nike swoosh, would be in great legal peril. No one could be shown doing anything they enjoy and certainly not involving a product or some trademarked symbol and that's just nonsense. Now if the SODA COMPANY showed the image of somebody enjoying their soda in order to promote the sale of their product, then there is liability on part of the soda company. Moreover, a photographer selling the image does not make them liable for misappropriation, its the person or entity that uses it that is exposed. Trademarks issue fall under a separate analysis.</p>

<p>See an attorney for legal advice and not us online.</p>

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<p>Errrrrrr!</p>

<p>OK, John....If you insist nit picking every one of MY assertions, please allow me to cite a specific example with this rodeo theme in mind. I was really hoping YOU could infer my meaning..but I suppose that is why we have judges; right?</p>

<p>Ex:<br>

I am a rodeo rider. I compete at a national competition. Some photographer snaps a photo of me sipping a Coke while I am in the chute.</p>

<p>6 weeks later I see an advertisement in some magazine of me, drinking a Coke.<br>

Under the photo is the caption <em>"Rodeo riders everywhere are switching to Coke"</em><br>

<em></em><br>

I didn't sign a model release.<br>

I now have legal recourse to sue the publisher, the photographer and probably the Coca-Cola company since Coke (probably) endorsed and permitted the ad.</p>

<p>Further; if the rodeo is a legal entity such as the NFL, with entrants members of a rodeo association they too can sue.</p>

<p>Grey area: Same scenario but this time no caption. The photo shows the rider giving a thumbs up and his other hand holding a bottle of coke. It could be argued he is endorsing Coke. (Association) This one would no doubt have to go to the judge for a decision. How about he's giving the thumbs down? Same problem.</p>

<p>The OP (probably) has no problem doing what they want to do.<br>

My posting was nothing more than pointing out "possible" problems along the way. (i.e) <strong>USE.</strong><br>

The chances of the OP being sued? Slim to none in real world practices.</p>

<p>..and yes; selling and displaying are separate (USE) issues. Hanging in a museum or in a gallery is not held to the same standard as me (selling) or publishing in mass quantities, nor am I equally exposed to a law suit claiming damage to a individual for defamatory depiction etc...</p>

<p>When I use the terms (Forward an idea) (Associate) (Endorse), I am speaking of glaring if not obvious scenarios as in the example above.</p>

<p>As this is not a legal forum per se', I will desist further commentary, but am happy to give you the last word.</p>

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<p>The OP has a limited set of uses. Since displaying or selling in a gallery would not require a release, that should answer his questions. Should he or the gallery move into "self promotion," then it's quite likely that a release would be required.</p>

<p>Since he isn't going to sell for commercial uses or stock uses, as long as he doesn't state that there are releases available, he's unlikely to be liable for downstream users actions. That's not to say he wouldn't be caught in a broadly cast net if a suit develops at some point but being sued and losing the case are two different things.</p>

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<p><em>happy to give you the last word.</em></p>

<p>OK.</p>

<p>The example just given adds new game-changing facts & circumstances so its not really applicable to the earlier version which I commented on.</p>

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<p>selling and displaying are separate (USE) issues. Hanging in a museum or in a gallery is not held to the same standard as me (selling) or publishing in mass quantities</p>

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<p>To the extent that they are issues, usage is not one of them. Neither selling or not selling an image is an element in any invasion of privacy action. An image could be used in an offending way whether it is sold or not. Therefore, selling is irrelevant.</p>

<p>Displaying is only relevant in that invasion of privacy actions are only viable when the subject image is displayed to others. Therefore, displaying an image is not relevant to discerning if a use of an image amounts to an invasion of privacy or not. It is relevant only IF that question is decided because someone will have to have seen it for the action to exist.</p>

<p>While non promotional museum and art gallery display is editorial use and prevents a claim of commercial use/misappropriation, art displays can still amount to one or more of the three other invasion of privacy torts if the elements of those are satisfied. The elements of those torts are the same whether the subject image observed in one location or in millions of places. Therefore, museum use is held to the same standard when commercial/editorial determination use is not involved.</p>

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<p>nor am I equally exposed to a law suit claiming damage</p>

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<p>This is true as to how likely one will discover their likeness being used, whether the person involved will feel less harmed by the use and how much damage can reasonably be proved. All of these go to the odds of a claim being made and/or how much can be recovered as opposed to the legal merit so I agree with you on that.</p>

<p>I hope this has been helpful.</p>

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<p>Kevin:<br /> <br /> It's not a gray area if an image is used in an ad even without captions. The ad usage in itself constitutes commercial usage, regardless of caption or no caption. <br /> <br /> Generally speaking (not directed at anyone individually) commercial and editorial use is not all that difficult. <br /> Commercial: When image is used to sell and/or promote a product and/or service. As in ad use. Typically magazine covers, book covers and newspaper front pages are exempt even though it can be argued that a magazine cover most certainly is a form of advertising. If the photographer is paid (or not) makes no difference at all.<br /> Editorial: Again, if the photographer is paid (or not) makes no difference. Editorial usage is typically where the image is used to illustrate a piece/article/story. <br /> <br /> The content of the image(s) has no bearing at all. Let's look at an example. The photo here below. Same photo, three situations.<br /> 1. Photo is used in an advertisement for Hello Kitty plush-toys. Soothing after the upset... Releases needed for everyone in the photo.<br /> 2. Photo used for feature article about meth spreading (again) in rural America. No releases needed.<br /> 3. Photo exhibited at various Mid-West museums as a small part in an exhibition about men's fashion among law enforcement individuals. No release needed.<br /></p><div>00VdbI-215461584.jpg.068cd98162adafb6406f7aa694b46e80.jpg</div>
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<p>Well I did give John the last word, so it won't apply to you Mikael.</p>

 

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<p>2. Photo used for feature article about meth spreading (again) in rural America. No releases needed.</p>

 

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<p>..and now someone comes forward and says "Hey!..That's my house!"</p>

<p>..or the person who's home is involved in this operation is found not guilty of anything...<br>

or...the operation was for the capture of a bank robber, not a meth dealer.</p>

<p>Now; the person who lives here is fired from his job because the boss now thinks he's a meth dealer.<br>

Your caption "associates" that whoever lives in there is a meth dealer.</p>

<p>Are you kidding me about no release in #2? A property release at a minimum I would think is required unless there are circumstances around this photo you are not talking about; such as the person being arrested is not the owner; but still, someone owns this home.</p>

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<p>Starting back at the beginning, this is a question or flail about the photographer's responsibilities and liabilities. Not the paper's (or wherever the "article" appeared) and not the cops.</p>

<p>So what do we have here? A picture captioned "SCSO Search Warrant." That's it. It was apparently taken during execution of a warrant. So? It was apparently taken during the execution of a warrant. If the caption is accurate, it's accurate. Suppose there was an article that didn't have a picture, it just said, "A search warrant was executed at 123 A Street yesterday." Like the picture, if it's an accurate statement of the facts, it's not actionable. (Like it really was 123 A St.) Truth is a defense.</p>

<p>There is no accompanying article that makes erroneous statements of "facts." There is no article that says this is a drug dealers house. The photographer is not responsible for the idle or malicious speculations others make after reading accurate reporting of the facts. It wasn't used in an article and it wasn't used in an ad. Not for toys, not for Coke, not for battering rams.</p>

<p>Most reporters (spoken or written) are competent enough to use appropriate cautionary language - "suspected drug operation," "suspected drunk driver," etc. The article, if it existed, should do so as well, and accurately report the reason for the search warrant or circumstances. There is no guarantee that the evidence provided to get the warrant was accurate. So there could be errors on the part of the LE officials or there could be errors in reporting the events. But the picture, by itself, is accurate. Placed in the context of the thread posting in it's entirety, is also not actionable.</p>

<p>Could there be problems if reporting is inaccurate, if the warrant conditions were inaccurate? Sure. But that is almost never going to fall on the photographer. A photographer walking by, or on a ""ride-along" isn't going to be liable for taking a picture and not getting a release.</p>

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<p>Kevin,<br /> The owner of the dwelling as well as those inhabiting it on the actual morning of the warrant being served were indeed arrested. The caption is 100% accurate, like Craig points out. <br /> <br /> I have the luxury of captioning my images - in 99.9 percent of all cases - after charges are made by the DA, US Attorney etc. I caption my images with accurate images, hence there's no libel even though the circumstances of the photographs aren't very nice. There's not a thing wrong with photographing a felon on death row and captioning the image as an image of "NN (name spelled out) is serving time on Death Row in Missouri for (factual crime description). No releases needed for editorial use.<br /> <br /> Stop and think for a second about what you're saying about property releases for this type of shot Kevin. Do you really think the likes of CNN get a signed property release when they tag along a SWAT team serving a warrant? Do you think PJs spend eons trying to hunt down an owner of a property raided only to - very likely - have an incredibly hard time getting them to sign a release? They don't, I don't. This is what I do for a living. I work with the big National US book publishers and the matter of a release is only ever raised when there's a newbie researcher/editor coming in and thinking that releases are needed. They're not. If they were I can guarantee you that the likes of Pearson, McGraw-Hill, all the contractors I work with that produce publications for the Feds etc would be demanding releases. They don't simply because releases aren't needed.<br /> <br /> Keep captions true. Tell the publisher the truth about there being a release, or not. As a photographer that's really all you need to do. I specialize in shooting these sensitive subjects. I photograph high-risk drug warrants as they go down, I go out at 4 in the morning to assist the SO in photographing homicides and suicides (not for publication though), I photograph inside prisons, I photograph ongoing investigations at crime labs, I photograph violent crimes, I photograph street gangs, drug usage, traffic busts, and pretty much all possible ( and some impossible) topics of law enforcement and prisons and all related to those two main topics.<br /> <br /> Craig also casually makes a very important point. If someone decides to come after someone else with a law suit, it is almost never the photographer they go after. Why? Simple economics. The above photo has been used, most recently, in a college level textbook on criminology - again big Nation-wide publisher and an initial print-run of 250,000 copies. Let's say for a moment that someone gets their knickers in a bunch and decides to sue. Will they come after my one-guy Arresting Images Inc or would they be more likely to go after a publisher that employs thousands of people and makes a hefty profit every year? Indeed, they'll go for where the money is. This is certainly not to say that nobody ever goes after the photographer because people do - this is just to point out that it isn't all that common.<br /> <br /> I have been specializing in photographing corrections and law enforcement since I moved to the US in 1998. Before that I worked as an old-school PJ both writing articles and photographing, covering everything from war to human interest features, yes even of the fluffy kind. Much of what I do also gets used locally. In other words, the people that are in the photos actually often gets to see the photos. Haven't had - knock on wood - a single even resemblance to legal problem stemming from this.<br /> <br /> Let's look at an example. Some two years back I worked for our state Department of Corrections. What started out as scanning and restoring historical photos soon got a lot more modern. I was contracted to make and develop a media library for the department. To keep it brief, I was tasked with photographing all 10 state prisons in my state. Inside and out. Staff and inmates. Showing inmates in the SMU and/or isolation was no problems. Showing inmates at work was no problem. Showing inmates worshiping inside prison was no problem. Showing inmates participating in various religious studies (think Bible study but for each individual religion) was no problem. Showing inmates doing "less manly" things like doing dishes or cleaning was no problems. Despite the fact that these photographs were used locally, where the inmates families, friends, co-workers etc could see them. The only feedback we got was overwhelmingly positive. Much along the lines of an inmate's wife or family writing in letting us know what a relief it was for them to see what the cell looked like their husband/brother/son was going to spend his next 10 years living in. Needless to say the captions were kept accurate.<br /> <br /> There is such a plethora of misinformation out there about releases and when they're needed. A lot of really great photography gathers dust because people wrongfully think they need releases to publish anything. I think that is really sad.<br /> <br /> In case it hasn't already been made very clear I'm no attorney. I'm a photographer, journalist and the boss of myself (although my wife will argue with that last one), and nothing more nothing less. For real legal opinions and advice people would do well to turn to a local legal expert well verses in IP law.</p>
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<p>Mikael,</p>

<p>I have no problem whatsoever with the photo. On it's face it could run with no liability.</p>

<p>Your statement</p>

 

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<p>2. Photo used for feature article about meth spreading (again) in rural America. No releases needed.</p>

 

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<p>Could this photo run with THAT caption?</p>

<p><em>"Police raid meth lab in rural America." or "Meth spreads across rural America."<br /> </em></p>

<p>Perhaps I made a assumption that your example (#2) could be a caption.<br>

This is my objection and my question.</p>

<p><em>"Police raid <strong>SUSPECTED</strong> meth lab in rural America</em> " is another matter.<br>

I would think that would provide far more protection to the publisher.</p>

<p><em>"police serve a warrant at ABC street"</em> if true is fine as it speaks to the facts.</p>

<p>I fully realize the photographer would be the last to face a suit ( save self publishing), as I too sell many images to a number of pubs. I also license many of my photos with<br>

<em>"The photographer makes no representations concerning the existance of model/property releases..."</em> etc..etc...</p>

<p>If it's even remotely questionable, I add that provision; but that's me.</p>

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<p>As the old legal dictum says, the truth is not a libel.<br>

 

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<p>Could this photo run with THAT caption?:<em>"Police raid meth lab in rural America."</em></p>

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<p>If that was indeed a meth lab in rural America being raided, then sure.</p>

</p>

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<p>Kevin,<br>

I don't use contracts like that. <em>"The photographer makes no representations concerning the existance of model/property releases..."</em> etc..etc...<br /> <br /> Either I have a release or I don't. Both cases are spelled out in the licensing agreement. <br /> <br /> You can construct any caption to be "true enough" to clear the legal potholes. In my example the full caption for this image reads:<br>

"Deputy sheriff's serve a search warrant at XXX Anystreet. Inside the building illegal and prescription drugs were located. Tools and ingredients for manufacturing meth amphetamine were located and confiscated, as were various amount of prescription pain killers (opioids) and crack cocaine."<br /> <br /> All of which is true and henceforth there's not much that can make a valid complaint about the photo.<br /> <br /> Which caption the publisher actually decides to use in entirely up to them. I always encourage them to contact me with the new caption they want to use if it is hugely different from the caption originally embedded into the file. But let's face it - if the publisher wants to write "Police finally busts my Aunt Melba's illegal drug manufacturing ring, finally I tell you... muahahahah..." they can and there's not much I can do about it...</p>

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<blockquote>

<p>Deputy sheriff's serve a search warrant at <strong>XXX Anystreet</strong>.</p>

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<p>Just out of interest, Mikael, why were you reticent to give the correct address? It wouldn't be because you are afraid of being sued by someone, would it...?</p>

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<p>Not in the US. Here's a reasonably concise discussion of privacy torts in the US. Note, as they do, that it varies somewhat from place to place.</p>

<p>http://www.cas.okstate.edu/jb/faculty/senat/jb3163/privacytorts.html</p>

<p><strong>Definitions of 4 Privacy Torts: </strong></p>

<ul>

<li><strong>Appropriation</strong> -- Use of a person's name, likeness or identity for trade or advertising purposes without consent. </li>

 

<li><strong>Intrusion</strong> -- A physical, electronic or mechanical intrusion into someone's private space. This is an information-gathering, not a publication, tort. The legal wrong occurs at the time of the intrusion; no publication is necessary.</li>

 

<li><strong>Public Disclosure of Embarrassing Private Facts -- </strong> Publication of non-newsworthy, private facts about an individual that would be highly offensive to a reasonable person (true defamation)(so intimate that outrage the public's sense of decency).</li>

 

<li><strong>False light</strong> -- Publication of false, highly offensive (but not necessarily defamatory) information about an individual.</li>

</ul>

<p>Not appropriation, that's the use in advertising that's been discussed to some extent already. Not intrusion, this picture was taken of publicly visible space. Not public disclosure of private facts, again, this all occurred out in the open, to public view and there's no intimate personal information disclosed. Not false light, it's a true depiction of the event.</p>

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<p>Why would they Alec? The warrant was served at the time the photo was taken. No claims are made about the building or it's inhabitants ten minutes after that. If they would have a claim at all it would be against me, not against P.Net. Have you read and understood the ToS of this site?<br /> <br /> Or are you saying you feel we should never be able to publish images of anyone's property because we never know what it might, or might, not have been involved in? What if someone is pulled over in a car, can we publish photos ever of anyone driving that model car? Your logic seems to be slightly flawed to say the least.<br /> <br /> I can only tell you what the attorneys at big nationwide publishers tell me. It seems like you don't agree with them. Why isn't made very clear. Are you saying that if a crime occur somewhere we can;t publish photos of the event/place because a crime will not be occuring there constantly for the foreseeable future? Maybe I'm a bit dense but I don't understand where you're coming from.</p>
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<p>Why would they Alec? ... Maybe I'm a bit dense but I don't understand where you're coming from.</p>

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<p>I don't think you're dense at all. The position in the EU I don't think is as clear cut as the US, since the European convention on human rights gives a right for the private lives of individuals (article 8). For people who enjoy watching the unfolding of that kind of case law the Court of Appeal, House of Lords and (now) Supreme Court (all UK) have handed down judgements over the last decade that have enshrined into case law the concepts demanded by the Convention even without statutory provision, by twisting and turning the law as it stands.</p>

<p>In one particular example that comes to mind, a man who had a mental illness was filmed on by a local authority CCTV system in the public street brandishing a knife. The local authority sold the images which later appeared on national television. The man sued on the grounds of a breach of his right to privacy. The European Court of Human Rights upheld his complaint; while the filming was legitimate, and in a public place, and while he should have realised that he was on camera, it was not reasonable for him to expect pictures from cameras installed for law enforcement to appear with such broad exposure. (<a href="http://www.echr.coe.int/eng/Press/2003/jan/Peckjudeng.htm">http://www.echr.coe.int/eng/Press/2003/jan/Peckjudeng.htm</a>)</p>

<p>I realise of course that in the case above we're outside the jurisdiction of this court (and the Charter); I just wondered if you thought there might be a similar argument that might hold in the US. Possibly a bit tenuous, seeing as it's a picture of a house rather than a person - but I was just curious as to what you thought. I can see that if it were my house, as a new unconnected occupant I might be against the idea of it being continually identified as the site of a drugs bust - years later. I might seek to construct an argument that having it identified as such would be to my detriment somehow. For instance, without making clear that the events were historic and the current occupant was not associated with the drugs bust, that could be a case of False Light, couldn't it? Potentially defamatory, although not false per se.</p>

<p> </p>

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