How do I stand legally if publishing street photos?

johncrosley · May 9, 2011

Simon Crofts

I thank you for the link to the Di Corcia case.

I note that the court only decided the issue on whether the lawsuit was filed in a timely manner and never decided the issue of 'street photography' on the merits. I invite you to read the entire Wikipedia article you linked, and note that just because the case was dismissed does not mean that it stands for any point of law about 'street photography' other than in New York State, the plaintiff has to be quicker to bring his suit.

The court slipped the issue of the legality of using others' images or not, as courts like to do.

That's one of the first things they teach you in law school -- courts try to take the easy way out on thorny issues -- especially Constitutional issues -- when they can.

;~))

john

John (Crosley)

simon_crofts · May 9, 2011

I don't think publishers are going to see publishing street photography as risky at all. A lot of street photography certainly is published. There may be the odd one who sees some kind of risk there, but I don't think that would be normal. A lot of photojournalism is published too, which ought in theory to be more risky than street photography, and publishers go for it without batting an eyelid.

Publishers even publish articles about people and get away with it without being sued too often. Compared to street photography, actually writing things about people looks like legal suicide. But magazines, papers, books do it every day.

Publishers are more likely not to publish the work simply because they don't like it or they want to publish something else.

simon_crofts · May 9, 2011

That's one of the first things they teach you in law school -- courts try to take the easy way out on thorny issues -- especially Constitutional issues -- when they can.

</blockquote>

That's not what they taught me at law school.

I note that the court only decided the issue on whether the lawsuit was filed in a timely manner and never decided the issue of 'street photography' on the merits

</blockquote>

You're only looking at the appeal, and ignoring what the trial court decided. The appeal court didn't disagree with the trial court's ruling on this issue (indeed, two of the appeal court's judges went to the trouble of specifically agreeing with the trial court on that issue even though they strictly didn't have to rule on the matter), which leaves the trial court's arguments on that question as good persuasive precedent. The trial court decided:-

In a decision dated February 8, 2006, the trial court ruled in favor of diCorcia and Pace/MacGill on both grounds, and dismissed Nussenzweig's lawsuit. It ruled that the defendants' uses of Nussenzweig's likeness were not "commercial," but rather were forms of artistic expression protected by the First Amendment

</blockquote>

Anyway, that is a diversion. In the UK, there isn't the same potential problem, since there isn't the same kind of prohibition on using people's likenesses for commercial purposes in the first place.

johncrosley · May 9, 2011

Simon Crofts,

I went exclusively from the Wikipedia link in reviewing the Di Corcia status.

However, the trial court's opinion has NO precedential status UNLESS it was published.

Was it published?

I note that state trial court opinions almost never are published unless they are acting in an appellate jurisdiction (E.g., Superior Courts in California hear (or heard) appeals from Small Claims court, and in such matters, they were appellate courts, though if you ask anybody, the Superior Court in California is/was a trial court only -- but that just is not quite so.).

But even in such matters the decisions usually were not published and could NOT be cited as precedent under pain of being sanctioned (fined) for making an illegal citation of precedent of an unpublished opinion OR for something unnecessary for an opinion (dead words - obiter dictum).

It's against the rules of all the courts I have practiced in to cite as precedent unpublished cases, or cases for rulings that are not necessary to the outcome.

Occasionally, however, the 'supposed trial court' -- California's Superior Court -- acting as an appeals court, would publish its opinions in what was known as Cal. App. Supp. official volumes. (a supplement to official volumes of opinions.)

That was a very rare case, however, and I would be anxious to learn if there are more such 'trial court' published opinions exist elsewhere, and more specifically a current published trial court opinion exists in the Di Corcia case.

An appellate opinion dismissing the claim would nullify any trial court opinion, even if it seemed to endorse the trial court's findings, so long as the appellate court dismissed the claim on the basis that it was filed too late. Any other words would be useless and of no value or merit and could not be precedent.

If di Corcia were precedent, that would be great news to me, a street photographer.

In general I am not aware of ANY state trial court opinions currently that are published, but there are many states and many state courts acting in many capacities, so some state court opinions somewhere may be published, and I'm just not aware.

Federal trial courts do publish trial court opinions in the 'Fed. Supp.' -- at least some, which confuses a great many law students, since those are not appellate decisions, but still can be cited as precedent.

In general, a trial court decision cannot be cited for precedent outside the federal system until that particular point sought to be endorsed has been passed on by an appeal court IN A PUBLISHED OPINION. (Not all appellate opinions are published, see below).

My source, besides several years of taking US Constitutional law and practicing same for a very long time, for the proposition that courts try to slip most issues they can avoid, especially the US Supreme Court, is Linda Greenhouse, Pulitzer Prize winning US Supreme Court reporter, formerly of the New York Times, and a noted US Surpeme Court scholar, plus my basic US Constitutional (and other) casebooks and horn books.

It is fundamental in law that only published opinions may be cited as precedent.

I note you used qualifying words 'good persuasive precedent'.

That is not good or precise legal terminology.

If it is precedent is is precedent. You may cite precedent in a legal argument or brief.

If it is persuasive argument only it is NOT precedent. It can be precedent and persuasive argument, but to cite an unpublished case (not precedent) in argument or a brief is to flirt with sanctions (court fines). It's against court rules everywhere I know to cite unpublished opinions. If you truly and authoritatively know different, please let me know, so I can relearn my entire legal education.

In California many appellate decisions even cannot be cited as precedent because they are not 'Certified for Publication'.

There are so many appellate decisions that flow from the various appellate divisions of the Court of Appeals of California that it has been determined only certain decisions, which bear the imprint 'Certified for Publication' (and thus are published) may be cited as precedent.

Unless I have some fundamental flaw in my legal education, or you have presented things wrongly (and Wikipedia too), or somehow the Di Corcia trial court opinion was published in a volume of decisions of the trial courts of New York (please cite me if it was), it would be error, and an attorney could be fined for citing the Di Corcia opinion, as you have presented it here, as 'precedent', rather than saying 'it's good legal argument and thus persuasive'.

The upshot, is that, until you provide more, and without a published NY decision to refer to in an official compendium of legal decisions of NY that has not been decertified, the Di Corcia opinion has NO VALUE as precedent, and thus is NOT LAW for any purpose other than than that previously stated by Wikipedia: The defendant was just too late to file, and the rest of the proposition you put forth is just baseless as regards the Di Corcia case.

Any statements of approval or disapproval by the appellate court about the correctness or lack thereof by the trial court about street photography would fall into the category of 'unnecessary findings' or 'obiter dictum' (dead words), and have no value to any lawyer anywhere as precedent.

I would happily change my opinion if I can get and read a citation to the New York Court of Appeals ruling PUBLISHED officially in a legal volume of opinions of NY State by NY State, or if you can point me to some rule that allows citation of UNPUBLISHED OPINIONS AS LEGAL PRECEDENT and the Court of Appeal opinion is not seen as nullifying of obviating the Trial Court opinion (an almost impossible hurdle, that is the job of appellate court opinions).

Once in oral argument before the Ca Court of Appeal in a multi million dollar case I began to cite a variety of unpublished opinions (stating so), not to show precedent but to show the justices that the US Supreme had on its docket a case or cases considering the same issue, and that my court probably should check each of those case BEFORE they issued their opinion, so there was no conflict or error.

Before the justices realized I was only notifying them of parallel cases in existence and thought I was trying to cite UNPUBLISHED cases as precedent, there was a HUGE HUSH over the courtroom as the Chief Judge prepared what everybody 'knew' was going to be a mammoth and scathing scolding for citing UNPUBLISHED OPINIONS.

The scolding never came; I was not citing the case file numbers as precedent, which was forbidden, and all knew that. I was only giving them notice. There was a collective sigh when they realized that, and even some laughter of relief (justices too!)

Everybody had thought I was headed for a huge scolding . . . . but I did my work properly and did not cite the cases as precedent.

Appellate Court justices take it very hard if an attorney -- who should know better -- starts to cite as precedent unpublished opinions, unless somehow saying they're cited only for the persuasive value of the argument AND FOR NO OTHER REASON, since unpublished opinions have NO FORCE AND EFFECT AS LAW, unless you can show me different.

Even so, that's flirting with danger in court.

I don't mean for this to sound overbearing, harsh or pedantic, but any reading of your previous post, I am afraid, Simon, would lead to a wrong conclusion about the Di Corcia case and suggest Di Corcia has some value as legal precedent in a 'street photography' case.

So far I an convinced it does not.

Perhaps I am wrong, and I am willing to be corrected, but if you do, please point out precisely how and where I am wrong, and please give me a citation to the Court of Appeals opinion that was published where it says anything but the plaintiff's case was determined on the issue of the TIME OF FILING ISSUE ONLY -- as anything else discussed would be 'dead words', or so I was taught (and practiced).

My mind is not closed, and I HAVE GREAT INTEREST IF THE DI CORCIA CASE ACTUALLY DOES HAVE VALUE AS PRECEDENT, AND I REALLY, REALLY DO WISH IT DID.

I think this issue has great and continuing interest for every follower of this forum, and that's why I continue it, and also because I think you have perpetuated a major error, but I am certainly willing to be corrected. I have not followed that case over the years with exactness due it.

Perhaps there is more I do not know?

Regrettably, everything I learned and practiced and have read here so far, tells me your post about Di Corcia is erroneous.

I wish it were not so.

Please show me precisely how Di Corcia actually is 'law' (other than on the timeliness of filing issue), and I will be extremely grateful and willingly say so.

I think this issue is of paramount concern to ALL who shoot 'street', or I would have just let it go.

In fact it's possibly THE most important issue of all to US street photographers. Moreover, if it were US precedent, it could be cited as legal precedent in legal argument in any common law jurisdiction/country including the UK, India, Pakistan, Australia, Canada, and numerous other countries world wide which have laws based on the common law system.

Respectfully,

john

John (Crosley)

steve m smith · May 10, 2011

If you're sued, even wrongly, you gottta protect yourself, and that means hiring attorneys.

</blockquote>

Not if you represent yourself.

Anyway, that is a diversion. In the UK, there isn't the same potential problem, since there isn't the same kind of prohibition on using people's likenesses for commercial purposes in the first place.

</blockquote>

My memory is a bit vague but I can recall hearing about a case many years ago where the judgement given was in words to the effect of "you have no rights to the way the light reflects off of your face" which I thought summed it up nicely!

simon_crofts · May 10, 2011

I note you used qualifying words 'good persuasive precedent'.

That is not good or precise legal terminology.

</blockquote>

John, in the first few days in law school you would be told that precedent is divided into two types "(1) binding precedent" and "(2) persuasive precedent". It's absolutely fundamental to common law systems. So the expression I used "good persuasive precedent" is precise, and was used for a reason, and is the kind of language used by lawyers every day. You can read about the meaning of the words "persuasive precedent" here: <a href="http://en.wikipedia.org/wiki/Precedent">http://en.wikipedia.org/wiki/Precedent</a>.

You can read the New York State Reporting Bureau report of the NY state Supreme Court's opinion in the Di Corcia case <a href="http://www.courts.state.ny.us/reporter/3dseries/2006/2006_50171.htm">here</a>. The Appellate opinion, which also discusses the 'art' issue, is reported by the Reporting Bureau <a href="http://www.nycourts.gov/reporter/3dseries/2007/2007_02413.htm">here</a>.

By the way, it seems that since 2007, all Federal courts have been permitted to refer even to unpublished cases as persuasive legal precedent. Also, (published) decisions of courts in one state can be persuasive precedent for courts in other states.

studio460 · May 10, 2011

Has anyone contacted a publisher? I know that news and documentary works are exempt from requiring releases, but do publishers generally accept these works without releases? I was pitching a book to the legal department of a large media company, and I was told I needed releases for everyone for them to agree to publish, even if they were public figures.

Brad_ · May 10, 2011

>>> It being OK to publish a 'street photo' book is one thing.

Getting a contemporary publisher to handle publication might be another task entirely, which is the point I have made.

>>>> Has anyone contacted a publisher?

Yes. A couple of years ago at a book publishing workshop I talked to the owner/publisher of Nazraeli

Press, one of the few remaining fine arts photography book publishers, including "street photography," about releases. He said that he

doesn't require or ask for them. And has never had a problem. They have published many books of well-

known photographers and have been around close to 20 years...

johncrosley · May 10, 2011

On releases only:

Two winters ago, I lived in the same house as a professional female photographer in the US who was originally from Europe but who whose photography was US--based, and she was a US citizen.

She had worked a number of years as the primary photographer for one of the world's largest international airlines (she and airline not named for privacy reasons), taking all or nearly all the photos to illustrate stories in that US-based, international airline's in-flight magazine (not the one selling perfumes).

In previous times I had been an elite flyer on that airline, and even had elite status with them for years, and I had seen much of her work, not knowing who she was.

We had a discussion one day about release requirements; it is summarized essentially as follows:

She: "You should have seen me, I'd take photo then I'd have to go running after the subject with a release, begging them to sign. (She said invariably ALL signed, which I found interesting.)

I: 'You didn't have to get releases to get those photos published legally, so long as they did not people up to a 'false light' and (as almost always) they were taken in public places.

She: "That may be legally correct, but my publisher (the airline) absolutely required a release from every identifiable person in every photo, no matter what or it wouldn't get published.

'Period.'

[paraphrased and summarized for clarity]

Except for certain erotic photos and portrayals where age is an issue (it always is an issue, I think in such portrayal now under US law), I am unaware that releases are required as a prerequisite for publication by any law of any US (or UK) jurisdiction.

However, a release protects the publisher and photographer against claims such as appropriation of likeness for commercial purposes, libel (false light), invasion of privacy and similar claims, and publishers often wisely DEMAND them.

This is more clear when the publication, by intent or happenstance might end up in the European Union which has laws and where individual countries have laws about 'privacy' that are vastly more protective than what we have in the US (or from what I gather is the law also of the UK).

A wise publisher asks for releases, in part also because some crazy people will sue for just about anything, no matter how groundless the claim, and there is a certain bottom feeding part of the legal profession that takes unjustified claims either for 'settlement value' for harassment purposes, or because the client is willing to pay hourly, and the attorney wants the money badly or the attorney is just too ill-informed to understand he/she is making a baseless claim -- there are plenty of foolish and stupid lawyers who will take clients' money for baseless claims.

That being said, I worked for Associated Press (noted above) Wirephoto, both domestically and as a head of its world service department in NYC at times past, and we NEVER got releases.

In a news setting releases were impossible to get, and not expected. 'Street' photography is very similar to 'news' photography in many ways; it's often candid, and often impromptu, and with other overlaps as well.

News was news, and photographers could not be chasing after people clutching unsigned releases in hand hoping they'd get signed before there could be publication, EXCEPT WHERE THE PHOTOS WERE TAKEN IN INTIMATE SETTINGS, SUCH AS IN PRIVATE PARTS OF PRIVATE HOMES, ETC., AND ESPECIALLY FOR NON-CELEBRITIES IN SUCH SETTINGS (again, celebrities lose much of their privacy protection by virtue of having become a celebrity).

The professional woman airline photographer was NOT required by law, as I told her, to obtain releases, but she WAS required to do so by her publisher/employer.

For her in her case, no release = no publication, she explained, pure and simple.

It was her publisher's right.

john John (Crosley)

simon_crofts · May 10, 2011

I've had commissions from airline magazines - and they don't generally ask for model releases. It would be odd if they

did, since magazines generally don't normally need model releases before publishing photos, any more than book

publishers do. There are always exceptions in special circumstances, and one of those will be if the airline thinks that

they may be publishing pictures of their own passengers. The passengers might get upset if they think that their image

is being used to promote the airline by appearing in the magazine. That's probably why they wanted model releases for

pictures of passengers in the airport.

There are also restrictions in photography at airports, so the airline probably wanted to limit any potential for hassle.

simon_crofts · May 10, 2011

p.s. UK law is fundamentally similar to European law on this issue, rather than US law. It's not only similar, it's the

same in the sense that European law directly applies in the UK. The European Convention on Human Rights which

contains the privacy provisions applies directly to the UK, and is implemented via the Human Rights Act.

In many ways, UK law is less restrictive than US, since there isn't this direct legal prohibition on using someone's likeness for commercial gain that you have in the US. So the Di Corcia case couldn't even have got started in the UK. Yes, there are circumstances in which the EU privacy provisions could apply, but they're fairly limited, at least on the current state of the law. The main application has been to prevent images of J.K. Rowling with her son being splashed all over the press. Such caselaw as there is all revolves around protecting the private lives of celebrities from unnecessary intrusion.

Brad_ · May 10, 2011

>> A wise publisher asks for releases, ... ... ... ... ... ...

John C, the OP is asking about releases for publishing "street photography" in the UK. With regard to the

pages and pages you've written about your personal background, I'm till trying to find relevancy, or direct

personal experience that would directly address his question. Instead, I see a lot of pontificating noise

that does little to nothing towards helping the OP.

The best advice I've seen was addressed is in the first two replies - talk to a lawyer (in your area).

steve m smith · May 10, 2011

When everything goes to plan, neither a contract or a release is required. They are only used when something goes wrong to clarify the situation (and initially to set out terms and conditions).

I agree that it is often wise to ask for a release even when it isn't required but often people worry too much and try to cover themselves for every eventuality no matter how unlikely.

steve m smith · May 10, 2011

Such caselaw as there is all revolves around protecting the private lives of celebrities from unnecessary intrusion.

</blockquote>

I would hope that it revolves around protecting the private lives of everyone from unnecessary intrusion as 'celebrity status' is not a term used to differentiate in law.

It used to be the case though (sort of):

Scandalum Magnatum:

In English law denotes a wrong done to high personages of the land, as prelates, dukes, marquisses, earls, barons, and other nobles; and also the chancellor, treasurer, clerk of the privy-seal, steward of the house, justice of one bench or another, and other great officers of the realm, by false news or false messages, whereby debates and discord between them and the commons, or any scandal to their persons, might arise.

"The Popular Encyclopedia", Charles Annandale M.A. (ed.), 1895.

simon_crofts · May 10, 2011

I would hope that it revolves around protecting the private lives of everyone from unnecessary intrusion as 'celebrity status' is not a term used to differentiate in law.

</blockquote>

This is how the Telegraph reported the case: "In a case which will be welcomed by fellow celebrities, appeal court judges ruled that the children of famous parents should be protected from intrusive media attention. Lawyers said it would have a “profound effect” on the behaviour of paparazzi photographers."

The law applies to everyone, but since it's effectively part of media law and what the press can and can't publish about your private life, and preventing intrusion on a scale that stops you having a private life, in effect the privacy cases are mainly of interest to celebrities. A bit like the current kerfuffle about Super-injunctions. Yes, of course the law applies to everyone, but the cases are always about celebrities. The other leading case is about Naomi Campbell.

In theory the law might apply to a normal person having some kind of private moment even in public, at least if that person is in the news for some reason and being hounded by press packs, but in practise it's being used to stop paparazzi intrusion that prevents celebrities (or their children) having a normal life.

We live in a celebrity-obsessed society. Quite why anyone is interested in them, I dunno, but they seem to be.

steve m smith · May 10, 2011

We live in a celebrity-obsessed society. Quite why anyone is interested in them, I dunno

</blockquote>

I have no idea either!

john_macpherson · May 11, 2011

I've had several books published by a major UK publishing house, two of the most recent contained what would be categorized as images appropriate for the 'street and documentary' forum. These are mostly photographs of people I have approached in the street in small rural towns and country areas and asked to be allowed to photograph them, but there are also images where there are other members of the public from who I did not receive any permission.

In neither case did I seek a signature on a model release, and the publisher is not in the least bit concerned that such releases do not exist. The books are on Amazon and Barnes and Noble and everywhere else, and there is no legal concern that I am aware of about the content breaching privacy or any other law.

Ironically the ONLY problem I had was from a gentleman who phoned me and very rudely pointed out that he could see his house in one of the photos in the book and that I had no permission from him to use it. I politely informed him that I neither needed his permission nor was under any obligation to even discuss this with him. He continued to be VERY VERY rude so I less politely put him in his place and basically told him clear off. As the conversation had not gone exactly as he'd planned - I think he assumed I would roll over and write him a cheque - he softened considerably, was apologetic and contrite. I ended up sending him a nice small print of the image for his bother and that was the end of it.

Bottom line in the UK is, as far as I am aware, providing your depiction of the subject is not defamatory nor breaches privacy, and is not in being used to endorse a product, then you may freely publish.

steve m smith · May 11, 2011

Bottom line in the UK is, as far as I am aware, providing your depiction of the subject is not defamatory nor breaches privacy, and is not in being used to endorse a product, then you may freely publish.

</blockquote>

I think that sums it up very nicely.

johncrosley · May 11, 2011

John McPherson, Thank you for an informative post. It's far better than speculation, and I personally appreciate it - it helps guide me as a street photohgrapher who hopes to publish -- direct my future actions. john John (Crosley)

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