Unfortunately, there are numerous hazards and pitfalls waiting for you in your new career. Being prepared and alert of possible problems will better help you avoid many of them and deal with the rest. Legal jargon figures prominently in the entertainment world and one must be prepared to deal with matters pertaining to the ownership of his or her work and the admissibility of certain objects in his or her pictures. The following few pages will inform you of the theory behind ownership contention and help you be aware of your rights to ownership of your work.
In many states, it is illegal for photographers to use an identifiable photo of a person for trade, marketing or endorsement, without that person's consent. Photo use in product packing or in products for sale exemplifies illicit use. Various states, have laws protecting the right to privacy (e.g. A New York statute allows for civil damage claims if one's name or picture is used for trade or advertising purposes without a release signature), or at least have an assumed doctrinal common law tradition in this area.
Rights to publicity, are similar to rights to privacy, but are more powerful in scope. In California, rights to publicity give a person a right to have commercial control over his or her name and image. This is particularly important to celebrities, who enjoy fewer rights to privacy than most. Also, under privacy laws, individuals are not guaranteed power over their image post mortem through heirs or estates. Under publicity laws these rights are protected.
A significant problem with publicity and privacy laws is that both conflict with 1st amendment right to free speech. Because of this discrepancy, states have been forced to create an exception clause, allowing media to use undisclosed likenesses, on grounds of public interest. States have created these "newsworthiness" exceptions through court rule or statue (e.g. in New York, by court decision, via Arrington v. New York Times Co. (1982)). The application of these rules and laws is observable ever since their establishment, for instance, in, Finger v. Omni Publications International, 1990, a New York court ruled that unreleased stock photos in publications are permissible, so long as the subjects are not directly alluded to in the script of the publication. However, also understood in the law is that there can't be intentional and false damage done to the subjects, as seen through the case, Messenger v. Gruner + Jahr USA Publishing, 1997, where a model sued YM magazine for damaging her reputation by publishing her picture next to a scandalous sex article. She claimed that it appeared the article was about her; she won the case and was awarded 100,000 dollars.
First, it is imperative that photographers know how the photos they've taken are being used and, more specifically, how they are titled or captioned. Photos for editorial use can be unreleased as long as they are not libelous in nature. However, commercially used photos, even in terms of future stock benefits, must be released by the subject's signature. For example, one need not receive release rights, if giving a photo of a glad, award-winning athlete to a newspaper. Yet, one does need to get permission if that same photo is to be used in a television ad promoting a sports club.
Photographers frequently sell photos for commercial use, believing the subject will never find out about it. However, this sale is not worth it, as the monetary gain is not usually enough to cover the legal fees of the probable future suit. Furthermore, it is becoming increasingly hard for photographers to sell unreleased photos, as clients do not want a suit brought against them.
Nowadays, with such a high frequency of lawsuits, meticulous release forms are insisted upon by clients and are generally advisably for photographers to obtain. Model releases can vary with what they say, and can thus vary in their protective capacity. There is no such thing as a fully protective release, but a good one can reduce the chance of the model's successfully winning the suit, thus often preventing one from occurring in the first place. A sample release draft is provided by The Picture Agency Council of America and reads, "I hereby release, discharge and agree [to the photographer's holding] to use in complete form, whether intentional or otherwise…even though it may subject me to ridicule, scandal, scorn and indignity." It is generally agreed upon that such strong language completely protects the photographer. However, problematically, forms with such plenary language are rarely signed, and often create mistrust between the photographers and the model. To get around this predicament, forms are usually written in very specific terms, detailing when, where and how the photo is to be used. However, most photographers still want broader use rights. Also, another measure in solving the problem of release forms is for photographers to make models aware of the possible slanderous uses, or to have their agent contact them if such uses come up, so that the photographer may warn their models.
(For the purposes of this discussion, "property" refers to real, tangible property such as land and structures, rather than intangible property such as copyrights or product trademarks).
Because privacy rights can only be applied to people, there are few state statues or laws that explicitly govern the use of images of private property. Additionally, courts have consistently held that the use of photographs of an individual's property does not represent an invasion of that person's privacy. However, many property owners still try to control the use of images of their property, and they may attempt to cite various legal principles on which to base threats and claims. Property owners cannot prevent the publication of photographs of their property for the purposes of the news. However, the rules about commercial use of such photographs are unclear and the threat of claims is high; therefore, it is recommended that photographers take precautions to protect themselves.
New York World's Fair v. Color Picture Publications Inc. (1964) is the most prominent case involving unauthorized photograph use. A building from the World's Fair was distributed on postcards even after the photographer was denied an exclusive license to do so. In this case, the court ruled in favor of the plaintiff, citing that a photograph of a unique building on grounds where admission is charged for entry becomes a photograph that the plaintiff has a property right to. From this decision, it is widely accepted that photographs of buildings to which admission is charged cannot be used commercially without permission from the owners of the property.
However, many photographers, citing federal copyright law, say that buildings visible from a public place are subject to commercial use without permission from the owners. Even so, owners of some prominent as well as publicly viewable and accessible properties manage to prohibit the use of photographs of their property. Property owners are increasingly citing various legal arguments to prevent commercial use of the images of their property. One such argument stems from the belief that an individual’s property is an extension of himself or herself, providing it protection under rights of privacy. Others have referred to trade laws to argue that only they have the right to commercially exploit what they own.
Claims against photographers arise quite often. For example, if you are conducting a photo shoot and accidentally capture the image of someone's property in the background, a suit may be brought against you under trade law. What this makes clear is that in recent times more property owners are beginning to recognize the value of the images of their property and are using the law to claim rights to those images. It is therefore very important to be aware of such possibilities.
The principles that apply to model releases also apply to property releases. The broader the release, the more likely it is to protect photographers from claims. The difference, however, is that property owners may be less willing to sign. For example, PACA's property release allows photographers to alter pictures and use them as they please without the threat of lawsuits. Therefore, property owners who sign such releases waive the right to file claims no matter what the photographs are used for. It is important to be aware of this.
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