A Question of Legality [Photography]
 

I am working on a documentary called BORN, about being born and raised in a religious commune [I was] in Chicago.

I have quite a few photos at my disposal that feature many many people. I'd like to use these photos to illustrate what commune life was like. Can I use these photos or do I have to get the permission of everyone in the photo?

[My apologies if this has been discussed somewhere else, I looked around for a similar thread to no avail]

Jaime

I did a quick google search and this came up from USA Today:
http://www.usatoday.com/tech/columni...tography_N.htm

Doesnt cover video, but the gist seems to be there. If in a public place (which that isnt) and they are uniquely identifiable - then yes. (So in your case, it would seem you would have to get some release from the folks in the photo if in private settings.) Just a starter...keep searching and see what you come up with. :)

I wonder if documentaries have special exceptions though. Think about Michael Moore walking into Walmart headquarters and talking crap about them selling ammunition...would walmart really have signed a release form for that? I've noticed other puzzling things like that when watching docs. I don't know the answer, but I wouldn't throw this pictures away just yet!

Depending on what your final product is going to be and what countries you are involved with, the more specialized legal advice you will need to be given by someone authorized and part of the secret society of lawyers and judges.

Issues pertaining to the enforcement of the laws of the secret society of lawyers and judges (SSOLAJ) always involves risk, and how much of it you are willing to take. When dealing with the hypocrisy and vagueness of the SSOLAJ one will always take great risks and one can never predict the outcome as modern lawyers and judges have corrupted the whole system.

Knowing what the precidents are only can help so much as they are overrulled all the time by various judges. Also if someone wants to sue you, they will sue you even if you are within the secret societys general guidelines for whatever law. You get to learn the precidents by having an official of the secret society (a lawyer) tell it to you, as they are the only ones authorized by the state to talk about the rules (laws) of the SSOLAJ to you.

No just anyone can give legal advice in certain countries without risking being charged themselves by agents of the SSOLAJ, that includes giving legal advice on internet forums if you are not an offical agent of the society. For this reason, you will not really get a proper response to this question on this forum as most people will not risk giving legal advice if they are not an agent of the SSOLAJ themselves. There are online agents of the society you can contact though if you cant afford most.

To avoid dealing with any of the possibilities relating to this there is a simple solution, just blur over recognizable faces. You will see this done on many shows. That really is the only failsafe solution, if there even is that kind of thing anymore when dealing with the SSOLAJ.

For the videographers in UK Phil Bloom did a nice thread called Filming rights in the UK. A nice informative article there is also a small piece that you can print out and carry round with you for the awkward moments when somebody says Hey you Can't film here. Thanks to Phil and this small piece of paper you might be able to put them in thier place politely of course.

Alan

You need to consult a lawyer or two to get any real cogent answers on this. As has been said, using your photos where faces are recognizable exposes you to the possibility of a lawsuit regardless of whether or not you are within your legal rights. It's up to you to determine how much exposure you are willing to assume. You can only make an informed decision on this once you've gotten some accurate legal advice.

You could blur their faces. To be honest, I'm pretty sure you will need to do this, since you don't have their consent.

Since you said they are photos (i.e. stills), scan them into Photoshop and either blur or blackbar the faces. It isn't like you have to manually go in and blur each frame of video.

Martin

2 points:

1. There's generally an exemption if what you're shooting is of significant public interest
2. Have you seen how many lawyers Michael Moore credits in his movies?. "Bowling for Columbine" specifically credits 4 of the crew as legal services. Quite likely there were others associated with the production.

1. Commercial appropriation of likeness laws vary from state to state. There is no simple answer to this. However, whenever photos are taken in a locale where the subject has an expectation of privacy, a release is required.

2. In addition to the release issue, there is a significant issue of copyright. Did you take the photos? If not, you'll have to obtain a license to use them.

What if an interviewee is wearing a shirt that has a likeness of someone famous on it? In this particular sitution, they were wearing a shirt that had a moviestar on it. The shirt has nothing to do with the subject at hand, but none the less they were wearing it during the interview. Any thoughts?

Yes. It is copyright infringement, without a license from the shirt manufacturer and/or the photographer (whoever withheld film rights). It also may be commercial appropriation of likeness, depending on the jurisdiction. I'd suggest doing a track matte and blurring out the likeness on the shirt.

Thanks Paul.

I've been under the impression that if used as "editorial" you may not need a release. I think where it gets sticky is if you use those photos to promote or endorse a product of some sort.

I don't know if your intent is to sell this doc or what. Either way, I'd also try to find out and get permission from the original photographer for permission to use the photo(s) to avoid infringement.

As mentioned above, talking with a seasoned law professional would be your best bet, and then please report back here with your findings.

Jonathan

Just to back up what others have said. You must talk to a lawyer. This is not an area that's subject to rational deduction.

Take the example of the t-shirt with celeb picture. Rationally, you'd be fine. After all, it's a pic of a guy/gal who agreed to have their pic on t-shirts, the t-shirts are sold to be worn in public, lots of people take pics/videos of t-shirts. Think holiday pics/movies, and all those pics and brand logos on people's gear.

But then start thinking like a lawyer. I could sell the image rights of the celeb for movie use, so if I let some nobody from nowhere use his/her image, even as a by-the-way, in a movie, I'm either devaluing the rights, or I'm not sticking to the contract I have with whomever I sold the rights to. So I have to act to protect the interest.

Of course, the reductio ad absurdum of this is that no-one may take photos or shoot movies in the public places without a licence, in case they capture a controlled image. But since much the intellectual property law community doesn't seem to have me the word 'absurd', it's not an impossible notion.

So talk to a lawyer, be safe. Or don't, and be a rebel :-)

In addition to getting advice from a good attorney, get yourself some errors & omissions insurance.

If you do get sued, this might help protect you from losing everything.

And you might also consider creating a production company that's a limited liability corporation. Again, to protect your personal assets.

Again, a good attorney can advise you about all this.

Here are three links to begin your research. Research is needed to start learning what questions to ask the lawyer.

Model release - Wikipedia, the free encyclopedia

Amazon.com: A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things: Dan Heller: Books

Photo Attorney: When You Definitely Need A Model Release

(Copyright, releases, etc. etc. etc. is a bit like refereeing in the NBA. A lot of intersecting factors determine the end result.)

It's pretty clear cut case. A private person has the right to privacy. So unless you have the model release, clearly stating your output use (video doc, stock and so) you can't use it. Accidental exposure in public places is different case (like shooting riot situation or during public gathering).
A public person (politicians, known actors or musicians) give up the right to privacy. You can chase your local politician all you want, and they can't do a thing about it.

Well, no -- not if they're in or visible from a public place. The test is whether the individual has an expectation of privacy.

There is never anything such as a "clear cut case," particularly on the minimal information provided in posts to forums like these.

Not quite.

Getty Images will not accept any photos without a model release, wherever it was shot (public or not). Also you can't shoot into someone's window off the sidewalk. It is a clear cut case- you simply can't use any footage or stills of private individuals without their consent. Vide "Deliver Us from Evil" documentary, where there were kids filmed in the background- without parental consent. Ergo it is well established scenario.

Well, just because someone refuses to accept a film without model release does not establish the legality of the situation, nor make it a "clear cut case".

And, since Paul is a well respected attorney in this area of the law, I think others are well advised to listen to his advice here. Oh, here was a recent news release regarding Paul:

"Before attending Loyola Law School of Los Angeles, Tauger received
a bachelor's degree from the University of Massachusetts and a
master's degree from the University of North Carolina. Prior to
joining Rutter Hobbs & Davidoff, Tauger was an attorney with Bryan
Cave LLP specializing in intellectual property and licensing with a
client base of computer game developers, software developers and
distributors, and product manufacturers. Named as one of the "Top Bay
Area Lawyers" for intellectual property litigation by Bay Area Lawyer
Magazine, Tauger is frequently invited to speak at computer gaming
industry events and share his legal expertise on issues of law facing
game developers such as intellectual property and government
regulation."

We're lucky to have someone with his level of expertise on the Board willing to pitch in on answering some of these questions.

That is debatable. Good example is the Columbine massacre. Lots of kids under the age of majority were videotaped running for their lives, yet no releases were obtained and the footage was used extensively. If I photographed a firefighter through a window rescuing a baby would I need to get a release to publish the photo in a major daily newspaper?

Aside from privacy issues, there is also room in the debate for images of "legitimate public interest".

While Getty might not accept a submission without adequate model releases, The Associated Press will as would some other major news organizations. It depends upon the nature of the image or footage and how it's used. There are many instances where usage is far from clear cut.

I'm not going to argue about this with you. The law is as I stated.

Paul and Dean, I see your arguments. However my question would be: news vs documentary. Wouldn't a documentary be considered a commercial use, while news is non-commercial use?

Not quite. News is a commercial use, but subject to a 1st Amendment-based exception.