Street photography photographs decorated and sold as cards-am I still within legal rights?

[zelph_young]

<p>Whether you can do this or not varies with the country. US - check https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia for an example that may have some bearing here.<br /> http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0</p>

<p><br />Even Tiger Woods found out you can't control your own image when it is Art. http://www.theguardian.com/world/2002/jul/07/arts.artsnews<br>

http://www.rcfp.org/browse-media-law-resources/news/appeals-court-allows-artist-sell-painting-tiger-woods</p>

<p>Your sales barn is being conservative here and probably does not want to take any chances.</p>

[Spearhead]

<blockquote>

<p>Whether you can do this or not varies with the country.</p>

</blockquote>

<p><br />He's in the US.<br>

</p>

<blockquote>

<p><a href="http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0" rel="nofollow" target="_blank">http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0</a></p>

</blockquote>

<p> <br>

The DiCorcia case does not deal with a tranformational commercial product. It's irrelevant to the discussion here.</p>

 

<blockquote>

<p>Even Tiger Woods found out you can't control your own image when it is Art</p>

</blockquote>

<p> <br>

'We need to establish the hugely important principle that artists like Rush - as well as newspaper reporters and magazine writers - can depict or say what they want about celebrity,' The poster here is not dealing with a celebrity. The Tiger Woods reference is irrelevant.</p>

 

<blockquote>

<p>Your sales barn is being conservative here and probably does not want to take any chances.</p>

</blockquote>

<p> <br>

If by "sales barn" you mean people on this thread (where did this insult come from anyway?), then it's not about taking chances, it's about what's legally permissible when using a recognizable photograph of someone in a product.</p>

[regan_wood]

<p>In the US you can't use a person's image to sell a product without a model release. Your cards broke the law. Now, regarding art books and the use of street photography within those...the images contained inside the book are considered art and exempt but the image on the cover--the image presumably used to sell the book--needs a release. An image hanging in a gallery or museum, no release. An image for an ad, for cards, etc, needs a release. </p>

[photomark]

"Now, regarding art books and the use of street photography within those...the images contained inside the

book are considered art and exempt but the image on the cover--the image presumably used to sell the

book--needs a release"

 

Regan, how do you know this to be true?

 

Generally using work that originated in an editorial context to promote and advertise that publication (aka

incidental advertising use) has been allowed by the courts.

[v_willendorf]

<p>The decision is in: throw the baby out with the dishwater.<br>

The Parish Arts Council discussed the upheaval caused by my illegal Christmas cards and without seeking comments from its members or the advice of a lawyer issued this statement:</p>

<p><em>“The Arts Council policy of street and/or </em>photo shop<em> (sic) photography that involves photographs of</em><br>

<em>Individuals to be sold for profit by any means.</em><br>

<em> </em><br>

<em>The Arts Council Board of Directors on June 2, 2016, adopted the policy that the DAC Gallery</em><br>

<em>will not accept any art form of photography that is to be sold for profit, that involves photograph(s) of individuals, not accompanied by official binding consent/release form(s), signed by the individuals in</em><br>

<em>the photograph(s).”</em></p>

<p>Of course, I was wrong in what I did. I goofed. And it’s not because I was unfamiliar with copyrights and model releases. I was around when Martin Bressler (<a href="http://www.cardozoaelj.com/wp-content/uploads/2013/03/Bressler_7.1.pdf">http://www.cardozoaelj.com/wp-content/uploads/2013/03/Bressler_7.1.pdf</a>) and VAGA were trying to heighten artists’ awareness of copyrighting their own work. (I was even invited to sign the copyright poster and tote bag they had made up for promotion, right along with Robert Rauschenberg and quite a number of other recognizable artists. I declined since I wasn’t in that league of artists, but I was there and they insisted and so I did.)<br>

I have been in and about photographers all my life but I’ve only worked as one for or about 4 or 5 years with a wedding photographer. I photographed using a Nikon D2H which was brand new at the time. I have taken university photography courses and have used the home darkrooms of several friends. I have even loaded film into a developing canister under heavy covers in my bed when that proved to be the darkest place I could find.</p>

<p>When I first joined Photo.net, I noticed so many people enjoyed Al Kaplan in the Leica forum and time and again cajoled him about writing a book. They printed t-shirts with him and his Leicas. They visited him in North Miami from all over when they happened to be passing through. But nobody did anything to help him with a book. It was obvious he wasn’t and maybe couldn’t attempt something like that alone. One day, I got in touch and told him I would set up a blog for him, but he had to do it exactly as I laid it out. He agreed. I titled the blog, set it up, and wrote the first couple of entries for him in what I felt was his writing style. He printed the photos in his darkroom and mailed them to me. I posted them and his blogging until I taught him how to at least post the blogging. He never figured out how to post the photos. Not that long after, the blog was a Yahoo Pick of the Week. <a href="http://thepriceofsilver.blogspot.com/">http://thepriceofsilver.blogspot.com/</a></p>

<p>Photo.net held a Saturday morning contest about that time that I entered. I think it was announced several days ahead, and photographers were supposed to enter photos they had taken that morning or that day. There were three judges who would pick their top 5 photos of the bunch. My photo showed up at one rank or another in all three judges lists.</p>

<p>Now, I am saying all this in my defense, and in any way that it might work for a defense for me. I live in a town that is halfway between the movie “Deliverance” and the book, “Lord of the Flies.” A number of years ago the parish arts council asked me to paint the empty store windows of an abandoned downtown. I thought it might be fun to paint a whole art gallery. I began copying one of Picasso’s Harlequin paintings, and then Edward Hopper’s “Nighthawks”. I did not assume authorship of these paintings, and credited each. After that, I decided children might enjoy a colorful and fanciful Chagall painting. One night, after the painting was nearing completion, someone washed off the whole thing from the window.</p>

<p>No one seemed concerned. I was the only one that was outraged.</p>

<p>And yet, now, I feel I have been virtually tarred and feathered for one misstep that I was not even allowed to correct and put right myself.</p>

<p> (By the way, the guy who washed off my painting was sent to Federal Prison years later for money related issues. At least someone reproached him for something.)</p>

[regan_wood]

<p>Mark, that's my general understanding of the law from reading about it, school and lawyers. I haven't read about those specific cases, so feel free to pass along. But a quick Google search found info on PDN and ASMP talking about the problem of using street photographs on covers of books versus inside. Here's a start: https://asmp.org/tutorials/frequently-asked-questions-about-releases.html#.V1ZAVZMrI60</p>

[photomark]

<p>Regan, I wouldn't be so bold as to suggest lawyers, school, or ASMP are wrong on this issue. I was

hoping you had a specific example, though, because there is a lot of case law suggesting that magazine and book covers have a first amendment exception when they reflect the content of the magazine or book. </p><p>There are some classic examples of the courts favoring incidental advertising use for editorial content.

One is Shirley Boot, v. Curtis Publishing Company. Shirley Booth was photographed and appeared in an

issue of <i>Holiday</i> Magazine </p>

 

<blockquote>

Concededly, the publication in <i>Holiday</i> was not a violation of Miss Booth's right of privacy, for this

was reproduction for news purposes as the phrase had been used in applying the statute. However, in

June, 1959 defendants caused to be published the same photograph in prominent full-page

advertisements of Holiday, in the <i>New Yorker</i> magazine and <i>Advertising Age.</i>

</blockquote>

 

<blockquote>

To be sure, <i>Holiday's</i> subsequent republication of Miss Booth's picture was, in motivation, sheer

advertising and solicitation. This alone is not determinative of the question so long as the law accords an

exempt status to incidental advertising of the news medium itself. The exemption extends to the

republication because it was illustrative of magazine quality and content, even though, realistically, it is

recognized that the republication also served another advertising purpose, that is, initially attracting the

reader to the advertisement.

</blockquote>

 

<p>There's another similar case between Joe Namath and Sports Illustrated where Namath appeared in the magazine and SI used his image to advertise the magazine. Namath sued and the courts said:

</p>

 

<blockquote>

Where use of professional athlete's photograph was merely incidental to advertising of publisher's magazine in which athlete had earlier been properly and fairly depicted, and language of advertisement did not indicate athlete's endorsement of the magazine, there was no invasion of athlete's right to privacy in violation of Civil Rights Law.

</blockquote>

 

<p> A good example involving a book cover is <a href="http://www.onpointnews.com/docs/nickel&dimed2.pdf"> Christianson v. Henry Holt and Company, LLC</a> (page 6 - 11 for a quick rundown and related cases). In this case the person on the cover won, but reading the opinion spells out clearly that it is because she wasn't mentioned in the book at all - she was purely used as an advertising image. Had she been even a small part of the book, the use on the cover would fall within the first amendment protection:</p>

 

<blockquote>

…if Plaintiff’s identity was incorporated into that non-commercial speech, then her claim would fall within this exception.<br/>

…<br/>

When it comes to the use of an individual’s image on the cover of a book, the case law reflects a strong First Amendment interest in allowing authors and publishers to use images that reflect the free speech contained in a book.

</blockquote>

 

<p>So while using a random person for the cover of your novel without a release is definitely a bad idea, it's hard to understand why a magazine or fine-art photography bookcover would require a release or even why you would need a release to use images in the book to advertise the book.</p><p>Some of the state laws are explicit about how you can advertise works protected by the 1st amendment. For example <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62 ">Illinois</a> has the standard appropriation restrictions:</p>

 

<blockquote>

A person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent from the appropriate person…</blockquote>

 

<p>But then says this (emphasis mine):</p>

 

<blockquote>

This Act does not apply to the following:<br/>

(1)use of an individual's identity in an attempt to portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, <b>book,</b> article, musical work, film, radio, television, or other audio, visual, or audio-visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services;<br/>

(2) use of an individual's identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign;<br/>

(3) use of an individual's name in truthfully identifying the person as the author of a particular work or program or the performer in a particular performance;<br/>

(4) <b>promotional materials, advertisements, or commercial announcements for a use described under paragraph (1), (2), or (3) of this subsection;</b>

</blockquote>