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Photography QnA: Getting Model Releases

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Category: Photography Careers and Making Money : Getting Model Releases

Do you have a suggestion for a Photographers Model Release Form? Include it in this Q&A or simply browse for answers to your questions. Here's an informative article by Brenda Tharp that can help too: Model Releases: When You Need Them, When You Don't.

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Photography Question 
DENNIS E. GRANZOW
BetterPhoto Member

member since: 3/8/2007
  1 .  Signed Releases for People Pictures
I would like to take more "on the street" people pictures for my portfolio, and to enter into contests. But, I'm having a problem getting them to sign releases allowing me to do so. Any tips for getting people to sign the releases.

5/26/2008 7:00:36 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  First, ask them for permission to photograph them before you start blasting away. Engage them using a compliment like "great hat, Carmen Miranda would be proud of that one" or if you come across someone walking their pet gerble, "that's a great gerble would you mind if I photograph you?" AND offer an incentive like "I'll pay you a buck if you sign a release so I can enter it into a contest." You'd be doing well to get a 50-60% success rate.
With that approach, you avoid the panhandling scenario, complement them and offer them money in about one or two brief sentences without wasting their time. The people that agree will generally be quite pleased with your offer and flattered. Carry some cards, offer to send (not sell) them a small print of your efforts like 3x5 after you present them with the release to sign.
What you absolutely want to avoid is sniping them with a telephoto from like a block away behind a lamp post and then walking up to them and ask for after the fact permission by saying something like: "Hey dude, I just photographed you from two blocks away, sign this release." That approach tends to arouse suspicion in most people.
OK, so not everyone knows who Carmen Miranda was. Just try "nice hat".
Good luck.
M.

5/26/2008 9:17:51 AM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  oh sure carmen miranda,and be up front with people.as far as snipe hunting.ya gotta have a big bag.a really big bag.the flushing them from the brush,or bush is a little more detaled.hmm.
so your not a (street) person?
go meet these people,like the dictionary says,a repoire.
you don't want to get to know them,fine.there still people and should be given the same respect you show yourself.
you might want not to group them,even though not the intent.this ain't barter town,real people.
to offer money??never.a print,fine.
probably out of line again,fine.
good night.

5/26/2008 10:14:49 PM

DENNIS E. GRANZOW
BetterPhoto Member

member since: 3/8/2007
  Samuel, I'm not sure I understand what your point is here. When I said take more pictures of "on the street" people, I'm talking about the average person engaging in normal daily activities, not a homeless street person.

5/27/2008 6:28:59 AM

  I think that the key to taking pictures on the street is to make eye contact. Most people will notice a photographer I smile at my intended subject and then raise my camera to take the photo, once focus I again make eye contact and take the photo. I carry a small collection of 4x6 in a small leather bound album with business cards to show them. The only time I will as permission ahead of time is if children are involved. I offer to send them a print in exchange for the release. which is the easiest way of obtaining their address, so that I can send the photos. Hope this helps, Ron

5/28/2008 6:40:53 AM

Dennis C. Hirning
BetterPhoto Member

member since: 3/17/2005
  I don't think that you really need to worry so much about model releases in the situation that you are describing. I don't have a problem using a photo of someone or something taken in a publc place without a model release and using it in a competition. Now if you were going to take a picture of someone sun bathing in their backyard from a rooftop three blocks away with a big telephoto that would be a different story.

I had an image of a person dressed up in buckskins from a public demonstration that I entered into a fair without any worry about a model release. (By the way, it won first place.) When I saw a perfect location for the photo in a restaurant, I sought out and recieved the model release from the subject before I considered selling it to the restaurant.

Here is a good read on the subject of model releases: http://www.danheller.com/model-release.html#4

If you see an someone walking a dog from two blocks away that would make a great image, you won't get it if you run up and ask a person to sign a release before you snap the shutter.

Personally, I don't worry about using a photo without a model release in most situations. If I was going to sell an image that I had been paid to shoot, like a wedding, I would get permission before selling it.

I have more pressing concerns than worrying about model releases on everything that I shoot. You could spend all your time getting a release from the people in the shot, the cafe owner whose cafe is recognizable, Coca Cola because their sign is in the image. How about Ford because there is a Mustang parked on the street. Don't forget all the recognizable buildings in the background.

If I worried about all of this each time I took a shot, how would I have time to do any photography much less worry about how I was going to pay for the 100-400mm lens that I want?

If someone thinks that they can win a law suit to get enough from me to even pay the lawyer because I entered a photograph in a competition, good luck to them.

Dennis

5/28/2008 6:44:48 AM

Dennis H. Hernet

member since: 2/14/2006
  I've found that being open on my intentions to shoot ... even after taking a few candids before asking ... in addition to offering the subject a CD with copies of all the photos I took, usually gets me a signed release. Total cost to me, including postage, about a buck-fifty ... the recipient is usually glad. And if the recipient asks for a special pose, do it. A small price to pay for a great photo opportunity.

5/28/2008 8:02:11 AM

DENNIS E. GRANZOW
BetterPhoto Member

member since: 3/8/2007
  Thank you all for your comments.

5/28/2008 11:25:26 AM

Jerry Frazier

member since: 6/6/2005
  Only one thing, NEVER offer money for photos. This sets up an expectation and can create an impossible situation for everyone involved. Now, the next guy will have to pay too. While in Thailand, everyone wanted money for me to photograph them. Please, please do not do this. If they say no, move on. Someone will say yes. But, don't pay them.

5/28/2008 12:08:17 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  The responses to these kinds of questions are interesting, perhaps more or less unfortunate in that I suppose they represent a lot of "me first" or "what do I care about someone else" or the ever popular "better to ask for forgiveness instead of permission". Obviously, Dennis G wants to do things right. His work reflects that and initially I provided him with essentially the correct approach which is to obtain a release if commercial use is even anticipated.

Those who don't follow the practice are rolling the dice, trying to fly under the radar, hoping not to get caught and misrepresenting facts on entry forms where prizes, anything of value, are given away. When a good first amendment trial lawyer gets ahold of that kind of case, that kind of risk taking nowadays can cost the photographer his home, his business, and his equipment if a judgment is rendered against him/her. Speaking of time, tying you up in a federal or state court proceeding for weeks on end IS a real time buster.

The central issue here isn't just releases. It's NOT about the photographers time to get a release, having the form, taking a moment to approach people and not snipe them with a camera merely because they happen to be walking or present along a public street. None of those things.

What it IS about is the fundamental rights of adults AND children (in the U.S. anyway) to have privacy AND not have someone literally stealing/taking their image to capitalize off of it absent their consent and written permission.

While playing the odds, yes it's true you probably won't get caught. But if you win a contest, it's going to get publicized somewhere, somehow. And I have to say, if someone photgraphed me and used that image to their commercial advantage without my consent, I'd be REALLY pissed and without hesitation, would go after them and the contest promoters AND the publisher for everything they've got. It's not a mere trespass. It's theft of a likeness to be used for your purposes without permission. Stealing, not borrowing.

As for what Dennis H said, more directly, if you carefully read Heller's web site, first you'll see he's not a lawyer. Second, you'll clearly see that he advocates erring on the side of caution. When in doubt, obtain a release. I can also safely say that these days, my editors ask for releases in most situations, both for editorial work AND of course for all commercial work.

Personally, I take enough risks in my life without adding to them. This is pretty unnecessary and can usually be solved by getting over one's fear of approaching strangers and just talking to them. I've often said you meet a lot of nice people that way. You also meet some protective of their privacy and THAT alone is a reason NOT to photograph them without their consent either before or after.

As for payment, what Jerry mentioned is particular useful especially when you're working in foreign countries. Some may be insulted by the "here's a buck for letting me photograph you" approach. OTOH, it's pretty standard in the U.S., especially because people here are often a bit shy about giving out their address for a stranger to send a print to, although I'm always glad to do that and offer.

So, is it worth the risk?
Take it light ;>)
M.

5/29/2008 8:54:46 AM

DENNIS E. GRANZOW
BetterPhoto Member

member since: 3/8/2007
  Thanks for further clarification Mark. Your taking the time to address this issue is much appreciated. Take care.

5/29/2008 11:39:19 AM

Jerry Frazier

member since: 6/6/2005
  Hi Mark,

I agree with you. I wont pay, but I agree with you. The idea is they give you address info and you send them a free pic. I'd rather do that than pay. If your session fee is $300 and a high-res file is $1k, you can tell them they are getting a $1,300 value for their release.

5/29/2008 12:46:21 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Hey Jer !!! I know exactly what you mean but I wonder how much time is involved in offering that level of education to an innocent bystander I just shot. A lot of people these days might still just not get it.

I'm working on a book project of my own right now involving photographing people with particular items in the scene. Since I travel a lot, when I go walking around in other cities, I grab a run bag and shoot in my off time in places like Seattle, New York, Chicago, etc. I've got a stack of signed releases matched to every single frame of every single roll I've shot for this project over the past three 1/2 years. And when I approached a publisher, the second thing they asked was "did you get releases for all these people?" They wouldn't have touched this project without them. In essence, releases give value to your work unless all you want to do is hang it on your own wall at home.
M.


5/29/2008 6:03:31 PM

  There are several states that require a written release and some that requi
re only a verbal, California being one of them. I agree with Mark it is imperative to get a release, even if you don't plan on using the photo right away. Mark do you also get a property release if you are shooting at on private property?

5/29/2008 10:20:50 PM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  i took a bit of offense by that comment mark.well,the general assunption,or the inference,that all of us are not honorable and not respectful of rights,was probably not intended.
so if I go to mr wrights church,i agree with him?guilty by association?
your contributions and knowledge,great.this was just a passing thought.
even if no one else saw it that way,i did.p'd,no.
just me,sam

6/1/2008 9:49:30 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Hey Sam ! You got me buddy. For the first time, I don't understand what you're talking about.

I would never for a minute paint people here at BP with that broad of a brush. I think you mean what I was referring to was people who don't get releases and then enter the work in contests for prizes (commercial use) and represent that they did obtain repleases as required in the contest entry forms. If so, that in my view, IS dishonest AND disrespectful of the rights of others.

I usually don't speak in overly broad generalizations. Let me know if what I just clarified isn't what you're referring to and specifically what it is you are referring to. I'll gladly clarify it for you. No sweat. ;>)
M.

6/1/2008 11:02:10 PM

Respond | Ask Your Own Question
 
Photography Question 
Ron Ross

member since: 3/2/2007
  2 .  Universities and Colleges: Property Release?
What laws or copyright issues would I run into if I took pictures of school property for intent to sell the pictures? Primarily I was thinking of property such as buildings or venues - not people. Would anything change if I added text like a school saying or phrase? What about the score of a game? Thanks in advance and thank you to all you professionals who spend your valuable time on this site to answer questions.
Ron

3/2/2007 8:34:22 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Greetings, Ron, and welcome to the party. The answer depends on whether the school is state or private. State schools are fair game. As long as the phrase or saying is not defamatory, that's also OK. Same with the scores.
Private schools you need to be careful with. They probably have a media relations person who would also probably be glad to sign a property release. Those can be found at Web sites like ASMP.org or Getty or Corbis Images. Again, the phrases must be non-defamatory. Scores should be reported accurately. Always check your sources.
If, for some reason, you do get people to appear in these photos and they're recognizable, since the work is commercial and if your text indicates the people in the photos are endorsing something like the school or a product or service, then they need to be released by those individuals. That can be a real sticky issue.
And thanks for the thanks!!
Take it light. ;>)
Mark

3/3/2007 9:11:40 AM

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Photography Question 
Marius Liebenberg
BetterPhoto Member

member since: 11/21/2005
  3 .  Model Release Forms
I take photos of children while their parents are present and sometimes photos of the parents themselves. The photos are for sale to the parents and possibly to some of their other family members. Do I need to have the parents sign any model release forms prior to the photo shoot?

1/25/2007 1:33:48 AM

  If you intend to sell those image to a thirty-party for commercial use, you will need a model release. If the images are only being sold to family members it's a non-issue. If you intend to this professionally and want to use these images for self-promotion on a Web site, cards, etc. ... it would likely be a good idea to have a release signed to protect yourself.

1/25/2007 6:58:17 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Well Marius, I agree with Ibarionex, including the releases for usage beyond the family, although it doesn't depend on your professional use, it's publishing or displaying the photo of a minor child in any medium, whether in print or electronically.
However, you gotta be somewhat cautious with this one, and personally, if I were you, I'd get releases from the parents if you plan to sell them to anyone beyond the parents who hired you - including aunts, uncles, grandparents, etc. Family relationships can change, and one member may become hostile toward another and, without your knowledge, may not want one person or another to have a photo of their kids. I hear about that kind of petty nonsense all the time, and the photographer gets caught in the middle. It may not necessarily be grounds for liability, depending on the circumstances, but having a signed release to show a disgruntled parent who squawks will shut them up quickly and put an end to the entire discussion.
Take it light.
Mark

1/25/2007 10:43:06 AM

Marius Liebenberg
BetterPhoto Member

member since: 11/21/2005
  Hi again

Thanks for the helpful info, it makes me wonder how the paparazzi get away with what they do.

1/27/2007 3:39:04 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Their subjects are somehow newsworthy and fall into a different category in terms of releases and the laws tnat apply to releases.
M.

1/27/2007 4:50:33 PM

Who Me? 
BetterPhoto Member

member since: 1/19/2007
  take it easy, and don't make it chezzy

1/28/2007 2:05:13 AM

Respond | Ask Your Own Question
 
Photography Question 
Christopher L. Sutherland

member since: 7/29/2004
  4 .  Selling Pictures of Sculptures
A few months ago, I took some pictures of sculptures. The artist allowed me full access to everything that was outside his home. My sister -in-law and her husband run a restaurant, and she has suggested I display my pictures for sale in the restaurant. What sort of laws do I need to be aware of? Do the publicly displayed sculptures fall under the same sort of guidelines/laws as a public buildings would (examples Eiffel Tower, White House, Alamo)? Any advice would be greatly appreciated.

1/7/2007 9:13:59 AM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  No, the copyright laws are totally different when it comes to photography of public buildings vs. sculptures or works of art. Federal copyright law allows the photography of buildings that can be seen from a public vantage point however this does not apply to sculptures or other works of art that may be on the building property or even adorn the building itself. You did the right thing by asking for permission, now go back and get a signed relesase.
Ray

1/7/2007 9:48:10 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Yep, Chris. Ray is absolutely right. While a verbal authorization is good, to protect yourself from a copyright infringement action later, in case the sculptor changes his mind, you need a signed "property release". You can get them at Web sites like ASMP.org and GettyImages.com. A handy discussion of the law is at http://www.copyright.gov or in terms of people model releases, http://www.simslaw.com/model/model_releases.htm#When
Take it light.
Mark

1/7/2007 10:03:42 AM

John Rhodes
BetterPhoto Member

member since: 2/24/2005
  Chris, I would add only one suggestion to the above requirements: When I ask for a signed release, I always give the property owner a copy of the print matted and bagged as a thank you gift. There is one thing that someone might clarify for me: Do you need a separate release for each piece of sculpture (in this case), or will a general release for all items on the property suffice?
John

1/7/2007 2:10:01 PM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  Since each piece has an individual copyright, I would get a release that details each piece approved for release. I would go as far to attach a photo to the release of each sculpture approved for release as well. What do you think, Mark?

1/7/2007 2:48:14 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Oh, absolutely, guys. Good thinking!!! I should have mentioned that. Just a release that says something like "all the sculptures I photographed in your front yard on Sunday" isn't sufficient by any means. So, Chris, your releases need to be specific for the property the artist is approving you use.
And while John's suggestion about about giving a gift print is a good one, that could get to be an expensive proposition depending on how many shots you're talking about. Nice thought, though, but you could end up building the artist's portfolio for him/her. Maybe some samples, a few matted prints of your favorite sculptures??? Dunno. Never been in that situation before.
Take it light. Have a great week!!!
Mark

1/7/2007 4:50:02 PM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  short of something freezing over..
sounds fair to me.
yeah

1/7/2007 7:48:10 PM

David Stephenson

member since: 1/8/2007
  Question: What are the copyright conventions for photos of individuals involved in athletic competitions?

1/11/2007 8:54:30 AM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  Samuel:

I'm not too clear as to what you are asking. Do you mean copyrights of a photograph of the person you photographed? Or can you photograph indivduals in athletic competitions?

Ray

1/11/2007 12:07:51 PM

David Stephenson

member since: 1/8/2007
  Sorry about that. I mean: often photos I have taken on the field (action shots) are published in newspapers or magazines ... I imagine there's no issue there.

But what if an advertising agency wants to use one of the action photos, with a recognizable face, on a billboard for example. Do the rights belong to the photographer, because it was a public event or do they belong to the athlete?

Dave

1/11/2007 12:49:44 PM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  You’re correct about the newspaper, magazines or any other editorial content. Typically no release is required. However, using the athlete’s photo for advertisement is going to require a signed release from the athlete since the photo will be used to promote trade or commerce.

Now the copyrights of photograph belong to the photographer until he/she assigns the rights to someone else, but using the photo to promote trade or commerce is going to require a signed release from the athlete. Being photographed in a public place does not allow one a free pass to the athlete’s “right to publicity.”

Ray

1/11/2007 1:11:44 PM

Ben M. Trapnell
BenTrapnell.com

member since: 5/5/2004
  Re the response from Mark F, giving the person a print is an important part of the transaction of getting the release. I think there is a portion of most releases that implies that there was some form of "consideration" made when the release is signed. In that way, it becomes a "contract" and carries a bit more weight. Can anyone confirm this?

1/11/2007 1:52:31 PM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  I think Mark was referencing the giving of a copy of the print more as a token of thanks than one of contractual consideration. I really don't know on that one, I'm not an attorney. It would seem to me that having a properly detailed signed release should be sufficent.

Ray

1/11/2007 2:09:53 PM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  i wasn't asking anything ray.you and mark agreed.(something freezing over).
you have it right ray.
photos,ben,are a gift.gift.one more time,gift.no release,no maka money.
a to the point thread,nice.
more clarity ben.nothing and I mean nothing is implied in a contract or release unless it is stated as such.
it does not become a contract or carry any more weight than a handshake.which means it won't stand up in court.
yet ray you maybe assumed that each piece had an individual copyright?hmmm.
i miss something,sam

1/11/2007 9:14:44 PM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  Hello Sam! Yeah when I responded to David S. and accidently used your name. Me boo boo.

Sure each piece is coyrighted just like each photograph you take is copyrighted. The release should spell out each piece by description or name of piece.

Ray

1/12/2007 5:13:28 AM

Ben M. Trapnell
BenTrapnell.com

member since: 5/5/2004
  The last photo release form I used started like this:

In consideration for value received, receipt whereof is acknowledged, I hereby give photographer’s name goes here the absolute right and permission to publish, copyright and use pictures of me in which I may be included in whole or in part, composite or retouched in character or form, in conjunction with (initial those applicable):.......

I wonder why nearly every release I've seen has had such wording in it.....

I guess Chris didn't mention what he was going to use the photos for...oh, wait a minute... he did say the photo were going to be sold.....to make money...

1/12/2007 5:56:03 AM

David Stephenson

member since: 1/8/2007
  Ray,

Thanks for the distinction between editorial content and 'for trade or commerce' ... and 'the right to publicity'.

Dave

1/12/2007 6:12:51 AM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  You're most welcome Dave. Glad to be of help!

Ray

1/12/2007 10:24:53 AM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  me yogi,eh boo boo.
I never saw where the sculptures were even copyrighted,wether as a piece or individualy.
anyway an inclusive release would include all sculptures.kinda like an estate sale that mentions all objects herin.
um david,publicity is a very grey area.
are you showing expertise in your photographic ability?or are you using this for advertisement?makin money.

1/12/2007 7:44:23 PM

Respond | Ask Your Own Question
 
Photography Question 
Earl Blansfield
BetterPhoto Member
Contact Earl
Earl's Gallery

member since: 3/24/2005
  5 .  Release for Shooting Lighthouses
I have photographed numerous lighthouse around the Delaware and Chesapeake Bays. I believe they are government-owned but also are associated with non-profit lighthouse associations. I did a show this weekend where I had some photos of the lighthouses for sale. A lady made a comment that all of these lighthouses belong to us. She took one of my business cards off the table and walked off. She didn't seem happy about the fact I was selling the photos. I got the impression she felt I didn't have permission to sell photos of the lighthouses and that she was part of some lighthouse foundation. Is there a requirement to get permission to sell these photos?

11/5/2006 4:42:03 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  I think you'll find that most lighthouses are still publicly owned property. If they still operate, it's likely the Coast Guard (In the U.S.) that physically maintains the light itself and a private non-profit association maintains the rest of the property, like the structures that house the lights, grounds and associated buildings. That's a pretty common scenario in California, Oregon and Washington. Where I live, it's Point Sur, Pigeon Point, Point Pinos, and a few in the San Francisco Bay Area.

So, public property owned and maintained by state or federal agencies is fair game for photographers and doesn't require a release for any reason, including commercial sales and/or self-promotion. There are a few lighthouses that were sold to private parties who turned them into residences. Those I believe DO require a release, but the property should be marked as PRIVATE PROPERTY, NO TRESPASSING, etc.
What you could do, and what I've done in the past, is directly contact the association or foundation that operates the lighthouse. Tell them who you are, what you want to do, ask for special access and offer them an opportunity to sell prints or posters of your work in their gift shop for a percentage of the profits. That, in turn, ingratiates you to them, motivates them to help you out when you need to shoot, helps you develop a relationship with them and their own benefactors (and trust me, they DO have lots of benefactors), and may help you turn a profit with your work. Works for me.
The really fun thing I've done is to volunteer as a docent for two lighthouses and went through a training course by the California Department of Parks and Recreation, so depending on my schedule, that allows me to give lighthouse tours to talk about their history, plants, ghosts, etc., and includes privileges like overnights. Wanna see something really scary?!?!? Nothing like being on top of a 620-foot hill perched over the Calif. coast during gale-force winds and rain, and the only two sounds you can hear are the howling winds and the fog horn on your light.
"It was a dark and stormy night... BOO !!!!"
Take it "light" ;>)
Mark

11/5/2006 10:34:42 AM

  Thanks Mark. I thought as much. I am giong to contact them and ask. I appreciate the advice. The two lighthouses near me are not accessable by land and they do not conduct tours at this point. But is would be great to see the inside of them. I shot a couple of photos of the Santa Cruz Lighthouse last year while I was on business in San Jose. My first trip on Highway One and it was absolutely grougeous. Made me want to pull up stakes from the east coast and move there. Well, thanks again. I appreciate it.

11/5/2006 12:28:26 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  So, notteth by land but oketh by sea, eh? Well, you know they say the light's always brighter on the other side (of the country). LOL !!!

Pigeon Point is very nice. Glad you got to see it. SF light is great, and there are four I can think of in and around SF bay. But if you get out here again, let me know and I'll see if we get the keys and can go hiking up at Point Sur which has just been rennovated and restored. The views from "The Rock" are pretty spectacular. :>0) !! I live off highway 1 and 68, about a block from the coast in a little place called Pebble Beach but I LOVE the east coast too, especially with its seasons.

Be well, Earl.
Mark

11/5/2006 12:56:44 PM

  I just looked at a photo of Point Sur on the the web and it looks awesome. I may take you up on your offer if I get back to the SF area. My wife and I actually drove down through Pebble Beach and Carmel when we were out there. I can't imagine what is like to wake up to that coast every day. I live about 6 miles from the Del Bay but it isn't much to look at. I will drop you a line if I get out that way. Again, thanks for the advice. Take care Mark!

11/6/2006 2:23:12 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
 
 
 
Yeah, it's an awesome view. I mistyped 620, I meant to say 320 ' above the beach and El Sur ranch. BTW, the photos they're still using were before my time. Someone at Central Coast Lightkeepers needs to upload the scans I did for them last year and get rid of the old stuff.

Yep. Keep in touch. Lemme know when you're back in this neck of the cypress woods and we'll hang out. And hopefully we'll have some dynamic surf for ya. ;>)
Be well.
Mark

11/6/2006 2:42:45 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
 
 
 
Yeah, it's an awesome view. I mistyped 620, I meant to say 320 ' above the beach and El Sur ranch. BTW, the photos they're still using were before my time. Someone at Central Coast Lightkeepers needs to upload the scans I did for them last year and get rid of the old stuff.

Yep. Keep in touch. Lemme know when you're back in this neck of the cypress woods and we'll hang out. And hopefully we'll have some dynamic surf for ya. ;>)
Be well.
Mark

11/6/2006 2:46:21 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
 
 
  Low Tide, Carmel Beach
Low Tide, Carmel Beach
Carmel Beach facing 18th hole at Pebble Beach in distant background top left.
 
  Pt. Pinos Light, Pacific Grove, CA
Pt. Pinos Light, Pacific Grove, CA
Photographed atop a sand pile, in the fog through a chain link fence.
 
 
Yeah, it's an awesome view. I mistyped 620, I meant to say 320 ' above the beach and El Sur ranch. BTW, the photos they're still using were before my time. Someone at Central Coast Lightkeepers needs to upload the scans I did for them last year and get rid of the old stuff.

Yep. Keep in touch. Lemme know when you're back in this neck of the cypress woods and we'll hang out. And hopefully we'll have some dynamic surf for ya. ;>)
Be well.
Mark

11/6/2006 2:47:48 PM

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Photography Question 
Carole Loiselle
BetterPhoto Member

member since: 3/23/2006
  6 .  Permission to Shoot Private Home?
Recently, while on vacation, I took a shot of our new truck; however, in the background is a private home. Can I use this photo for anything other than personal use without permission of the homeowner?

10/18/2006 3:52:22 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  First of all (and without seeing it), while it may be a great pic of your truck, its market value is likely diminished by the house in the background, assuming the house is recognizable. So the answer to your question is "No, you shouldn't use it without the homeowners permission".
In addition, to properly sell the photo, you need to get a release from the media/marketing rep at the truck manufacturer. Yes, even if it's your truck. There are two reasons for this:
First, selling photos of their vehicles isn't something contemplated by the average truck sales contract. and they could make a strong argument that you're being "unjustly enriched" by doing that. Second, the manufacturer has a proprietary ownership interest in determining how their image is presented to the public and used, whether for profit or not.
Now, chances are you'd get a release signed by the manufacturer before you get one from the homeowner, but in the case of the truck company, you're going to have to be fairly specific about the use of the photo and whether you intend to modify it at all. In fact, Carole, most corporations want to see an accurate representation of the finished work before they'll sign a release. This is the way it tends to be in the world of commercial photography.
Okie dokie?
Mark

10/18/2006 9:40:15 AM

Carole Loiselle
BetterPhoto Member

member since: 3/23/2006
  Okie dokie, Mark. Never thought of the truck company but this certainly makes sense. Thanks for the answer.

Carole

10/19/2006 3:23:37 AM

Li Su

member since: 11/4/2005
  According to an article "Legal Rights of Photographers"(http://www.kantor.com/useful/Legal-Rights-of-Photographers.pdf), you don't need permission to shoot or publish your photo with a private house in the background as long as there is no reason for that house to expect privacy from the public street where you took the photo. I'm not sure about the truck itself though. The previous comment may be right.

Belows are quoted from the article:

"Except in special circumstances (e.g., certain government facilities), there are no laws prohibiting the taking of
photographs on public or private property. If you can be there, you can take pictures there: streets, malls,
parking lots, office buildings. You do not need permission to do so, even on private property."

"The logic is simple: If you can see it, you can photograph it. If it requires extraordinary means to see (e.g., using a
telephoto lens, or trespassing on property not open to the public such as a private office), then you may not be
able to photograph it legally."

"Subject to specific limits, photographers can publish any photos they take, provided those photos do not
violate the privacy of the subject. This includes photos taken while trespassing or otherwise being someplace they
shouldn’t be. Taking photos and publishing photos are two separate issues."

10/24/2006 8:31:14 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  What you mentioned is true in terms of privacy issues. But the law of releases covers more than that. It evolves from property law and one of the inherrent rights gives landowners the right to allow or refuse to profit from their land by having images of it used for someone elses gain.

So, while it's ok to photograph a private home in "plain view" how you use the photographs and what permission is required, is an entirely different, as in completely separate issue. For example, if you photograph a private residence in Pebble Beach, CA and in a completely recognizable form it ends up on the cover of House Beautiful magazine, my opinion is that you owe the owners some compensation and without a release they'd be entitled to come after you for it.

In addition, privacy laws are creatures of both state and federal law. Property laws, including how an owner may choose or not choose to use his/her property, is more a state law issue, so I think if you read the disclaimers on Kanter's book or web site, I think he recommends that you check with an attorney in your jurisdiction specializing in such matters because, simply stated, the case law vs. statutory law may vary from one state to another. The prudent approach is get a release.

Meanwhile, that last statement Li noted is correct but combines two schools of legal thought and two fundamentally different legal principles: The correct statement is "Taking photos and publishing photos are two different issues." That's my point. You may be able to take it, but you might not be able to publish it without a release. As for the first part of what Li said, "photographers can publish any photos they take...(etc)" is overly broad and could likely to lead an unwitting to some legal problems at some point. I think that's really wishful thinking on Li's part and tends to support a predrawn conclusion which is sort of backing into a problem to find the answer you want not necessarily the correct one.

My advice is get a release. And...take it light. ;>)
Mark

10/24/2006 9:05:07 AM

Li Su

member since: 11/4/2005
  Thanks Mark for the detail. Better be safe than sorry.

10/24/2006 9:12:53 AM

Carole Loiselle
BetterPhoto Member

member since: 3/23/2006
  Thanks to the two of you. Appreciate your taking the time to help out.

10/25/2006 3:15:05 AM

Daniel O

member since: 5/30/2006
  Here's a thought: If the house is not integral to the photo, why not blur it so it's less recognizable? Easy to do in Photoshop or Elements, or probably any software using layers. That will bring out the truck visually, also. Then get a release for the truck only.

10/25/2006 9:39:28 AM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  I have several questions to Mark concerning his opinion as to the necessity for obtaining a release if a building or house is in the image. I would like some clarification concerning a couple of points that Mark has made.

You have mentioned “property law” as a basis for obtaining a release for a building or home, etc. Since you have cited California as your example and you live in California, could you provide us with an example or better yet the specific California property law that supports your opinion? I have researched this subject until I’m blue in the face and I cannot find anything yet (still looking) that is tied to property law concerning the publication of a photograph of a building that is in public view. Everything I’ve found so far is tied to privacy law more specifically “right of publicity” which as you know can include property of the individual that is claiming right of publicity.

Second question. Your example of the use of the photograph of a house in Pebble Beach, CA on the cover of “House Beautiful” in your opinion would require a release. Since “House Beautiful” is a magazine with a clear intent to “inform or educate” and as long as the photo’s use was editorial, this would seem to fall under 1st Amendment protection wouldn’t you agree? Therefore no release is required. There are a gob of court cases I’ve found that would seem to support this. Take Joe Namath vs. Sports Illustrated (Namath v. Sports Illustrated, 371 N.Y.S.2d 10 1975) for example, the courts ruled that no release was necessary since the release of the Joe’s photo on the cover of SI was editorial. He also lost a similar case in San Jose, California when a newspaper published posters of the famous quarterback.

Don’t get me wrong -- I respect your opinions. You have a very conservative approach about obtaining releases even in cases where one may not be needed. Clearly to reduce the potential for suit is to obtain a release but in some cases may be impractical. I just find it very impractical and in most cases not legally necessary (depending on the use) to get a release from every building owner of an image I take on the street of buildings in public view. I’ll call to question the New York City images on your gallery. Did you get a release from all of the building owners of the buildings that are clearly identifiable?

Thanks for taking the time for these questions.

Ray

10/25/2006 8:03:14 PM

Carole Loiselle
BetterPhoto Member

member since: 3/23/2006
  Thanks Dan and Ray. I like the house in the picture and wouldn't want to change it. We were in Niagara on the Lake, on the shore line, when it was taken, a very public place with many visitors year round. And we paid good money!! for that new truck, lol, and would think that I should have some rights. Actually I wanted to send the picture to the company where the truck was made.

Appreciate your help.

Carole

10/26/2006 6:06:48 AM

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Photography Question 
Karen S. England

member since: 8/17/2006
  7 .  Photographing Buildings: Permission Needed?
Bear with me, Im new to the whole thing! :0) I have been taking pictures of local farms, barns, old buildings, etc. I was wondering if I had to get the landowners' permission before selling these photographs? Thanks so much!

10/11/2006 7:40:56 AM

Christopher A. Vedros
BetterPhoto Member

member since: 3/14/2005
  If the buildings are on private property (sounds like they are), then yes, you do need the owner's permission.
Chris A. Vedros
www.cavphotos.com

10/11/2006 8:22:38 AM

Karen S. England

member since: 8/17/2006
  Thanks so much!! What would be the best way to go about getting permission? My husband and I drive around, and I just snap the shots, so Im a bit "chicken" to just go knock on someone's door, if ya know what I mean!

10/11/2006 11:18:35 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Unless you see a clearly posted sign that says, "No Trespassing", you actually got it: While driving around, go knock on the door and ask!! Most people will be flattered. They might even offer you a glass of homemade lemonade and a few cookies. And... and... you might even get to photograph them in their home environment - like working in the barn, milking the cows, etc. Plus, you might meet someone who becomes a lifelong friend. The possibilities are endless. Go knock on the door.
Take it light.
Mark

10/11/2006 4:11:21 PM

Karen S. England

member since: 8/17/2006
  So Mark, I actually dont "have" to have permission if I dont see a No Trespassing sign? Hehe forgive me for being a flake :0)

Thanks you guys alot for the info!! Im just starting out with this, and Im obsessed with it, but I want to make sure I do everything right!! Thanks again!
Karen

10/12/2006 3:09:16 PM

Mike Rubin
BetterPhoto Member

member since: 10/15/2004
  Mark is the expert, but I think you only need a "property release" if you plan on selling the image. Maybe Mark can provide add'l info.

10/12/2006 3:18:50 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  No Karen. What I said was it would seem to be alright to go knock on the door as long as you DON'T see a sign that says "No Trespassing". [Trespassing is the entry on the land of another without privilege or consent]. You don't have to trespass to photograph the property, but you may have to trespass to get PERMISSION to use the photograph in print or commercially.

So, Mike is correct in that you need a property release if you're going to sell the image as you seem to want to do, OR if you are going to publish it, electronically or in print.

The reason for all this is because landowners have a right to control the use of their property. Depicting their land or buildings or out-buildings in photos that those things are recognizable, is use of their property for commercial gain and its their inherent right to control that and refuse, for any reason, if they choose to do so.

Let's say for example, you photograph a red barn and corn crib that's clearly recognizable for some reason(s) and it's in Iowa. You turn around and sell the image to Mail Pouch Tobacco Co., that uses the image on their cans and display advertising. They pay you thousands of dollars for the rights of usage. BUT, Karen was bad. Karen didn't knock on the door and get her release signed. Karen got sued by the property owners for misappropriation of the images of their property for commercial purposes. Karen lost and had to give up all the current and future profits to the image(s) without even having an opportunity to offer the property owners a chance to share them. :<((
Got it now? ;>)
Mark

10/12/2006 4:39:24 PM

Karen S. England

member since: 8/17/2006
  Yeah :>P I got it! I thought that you would have to, but I guess I just read the first response wrong (shocking huh?) haha

As far as the images I have permission to sell....We live in a pretty rural area, so Im trying to figure out a "price range" for everything. I dont want to "rip anyone off" but dont want to rip myself off either if ya kwim!? Any suggestions??

Ya'll are gonna wish I never found this site! hahahaha

thanks guys!
Karen

10/12/2006 8:32:25 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Don't know the economic area you live in, but you might try adding up all your costs, figuring in your time and how much that's worth, misc. expenses and then take all those and multiply the total X3 or 4 to get a ballpark figure.
M/

10/13/2006 10:47:40 AM

W. 

member since: 9/25/2006
  If the building is visible from the street (public area) you can take any photo you like, afaik*. It is what you DO afterwards with those photos that is important.
For publishing them or selling them to third parties you may need a release.

*with the exception of militarily strategic buildings. Like bridges, railways, energy plants, and such.

10/13/2006 1:00:45 PM

Respond | Ask Your Own Question
 
Photography Question 
TERESA J. SWEET

member since: 5/12/2005
  8 .  Wedding Photography: Model Release
Hello,
In my wedding contract, it states I have all rights to use the photos as needed (advertising, etc). I recently photographed an engagement couple with their children, as well as the children separate. Now, to really cover myself, should I have the parents sign an additional release form for the portraits of the kids... or, since this was part of the engagement session, would that be covered still under the contract? Just wanted to double check and see what you guys and gals thought! Thanks in advance!

10/8/2006 3:34:19 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  If you're saying you photographed everyone in the same session, although separately, and that you obtained a release from the parents for the photographs you made during THAT session that named the kids, then no, you don't need an additional release.
If, on the other hand, the kids were NOT named in the original release for THAT session, yes, you should get a release that covers them specifically for that specific shoot. Okie dokie?
Releases should be specific as to specific persons photographed on a particular date and time.
Mark

10/8/2006 3:50:15 PM

TERESA J. SWEET

member since: 5/12/2005
  Ok, I thought so...but I figured I would ask just to be sure (and I knew I could count on you for responding!). Where would BP be without you, Mark? LOL ;)

10/8/2006 4:14:59 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Hmmmm, much further along the trail than they are with me???? Yikes !!! Imagine me as a BP instructor? Ohhhhhhhhhhhhh noooooooo.....don't go in THAT class !!! LOL !!!!
M.

10/8/2006 4:29:00 PM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  i'll take that class..

10/8/2006 7:13:45 PM

Barbara Wenneberg

member since: 1/26/2005
  When in doubt always get an extra release signed for seperate pictures. The people usually don't mind signing the releases if you explain why.

10/10/2006 8:56:35 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Thanks Samuel. Any suggestions as to what it should be on [other than film-based]?
M

10/10/2006 9:23:36 AM

Loraine Ehresman
BetterPhoto Member

member since: 6/22/2006
  where would I find a release form?

10/12/2006 8:53:53 AM

TERESA J. SWEET

member since: 5/12/2005
  You can find them in books or even online. You can google for a free one or just make your own to cover all the bases. Whatever works best for you! =)

10/12/2006 8:56:38 AM

Samuel Smith
BetterPhoto Member

member since: 1/21/2004
  i only listen to those who teach,not preach,and the topic is mute.
and pass it on I will.
I will not abuse my knowledge,only share.
the best teacher is one whos student becomes a better teacher...
yeah.

10/12/2006 9:26:09 PM

Respond | Ask Your Own Question
 
Photography Question 
Ken Barrett
BetterPhoto Member

member since: 3/13/2004
  9 .  Photos of Kayakers: Model Release?
Hello, everyone! I need some advice. I took digital images of various people (I didn't know any of them) at a whitewater kayaking event. A man came up to me and asked if he could get the images of his girlfriend that I shot. Should I ask him to get her to email me permission to release the images to him? Or would it be OK if I just sent them to him? I don't know her or the man, and they live in a nearby state. I'm not charging for the photos. Any comments or directions welcome.
Thanks, Ken

9/12/2006 3:38:47 PM

Estella Aguilar

member since: 7/27/2006
  its a pretty hectic situation. its scary to. I dont know if you can just go around taking people pictures like that. I think maybe you need to find out if that is permittable.hold off on giving anyone your picture,there picture its better to be safe than sorry. just had to let that one out I wouldnt want anything to get ugly.once you find out that answer.did you get the subjects permission?

9/12/2006 4:11:15 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  You've got two issues as I see them in your question: First, you need to determine whether, in fact, the gal you photographed is related in some way to this guy asking for the pix. Maybe they're not. Maybe he's a whitewater stalker? How do you know?
Second, in a technical sense, you should have gotten a release from the girl before you distribute her image(s) to anyone. That release from her would probably serve as a valid defense if you got sued for invasion of privacy.
Know what, Ken? Without more info, I'd walk away from the whole deal and just tell the guy they didn't turn out the way you wanted.
Take it light.
Mark

9/12/2006 5:00:54 PM

Ken Barrett
BetterPhoto Member

member since: 3/13/2004
  Thanks for your help. I think I'd better get a signed release.

9/12/2006 5:25:55 PM

Bill 

member since: 6/17/2002
  The best answer is the truth. Tell him you are not comfortable sending the picture to him with out the subjects permission. The old saying "Tell the truth and you don't have to remember what you said"

9/20/2006 5:39:42 AM

Slobodan Blagojevic
BetterPhoto Member

member since: 3/2/2006
  In this age of disclaimers, here is mine: I am not an expert in the legal issues raised here, so the following is just my humble opinion, as a fellow photographer.

Taking pictures in a public place, of a public event, can hardly be considered "invasion of privacy". Unless, of course, you caught that girl naked while changing her clothes behind a tree or inside a tent, for example, or any other place where she would have had a reasonable expectation of privacy.

You could even publish such a picture, with recognizable faces in it, without a model release, if the use is editorial (news) or non-commercial (e.g., photo exhibition). The model release would be required for any commercial use.

There is plenty of info on this if you google "photographer's rights", for instance. As a general rule, you are allowed to take pictures of anyone, anythng and anywhere, unless specifically prohibited. It is quite sad to see people questioning if you can go around take pictures like that, assuming it is prohibited unless speciffically allowed.

Hope this helps.

Slobodan

9/20/2006 9:05:07 AM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  I'm assuming that you were photographing the girl in a public area and not on private property. If so to say this is "invasion of privacy" would be a strech since you were in a "public domain" area. If the photo is not going to be published as a newsworthy event (no release is needed), then it could be assumed that the image would be for commercial gain not associated with any newsworthy publication and with that you would need a signed release.

9/20/2006 9:08:50 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Sorry Slo, but you've got the model release rules and privacy laws 180 degrees completely wrong as far as they pertain to the United States. What you're professing here is really wishful thinking particularly in a society as litigious as ours. While there are still "newsworthy, public has a right to know" exceptions to the model release rules, many genuine news publications are requiring photographers to get releases of events that might not quite be construed as so news worthy that the public DOES have a right to see the photographs of the event.

As to what Ray mentioned, "public domain area"? You mean a public place? Again, at least in the United States, private citizens (as opposed to public figures) still have certain rights to privacy while in public places, including, among other rights, the right to be left alone AND the right to control how any images of them are used whether for commercial pursposes or not, i.e., where they are displayed and how as in PUBLISHED either in print, electronically or displayed to others in public.

You guys need to do some reading and with all due respect, stop winging it or speculating because you're giving opinions cloaked under the guise of being factual advice when it's pretty inaccurate. Alternatively, consider the genuine accuracy of your sources. I get mine from the staff attorneys at one of the publications I shoot for.
Okie dokie?
Take it light.
Mark

9/20/2006 10:21:44 AM

Slobodan Blagojevic
BetterPhoto Member

member since: 3/2/2006
  Mark,

I think I clearly stated in the opening sentence that what followed is my opinion, not a factual advice.

However, I did write from the US perspective and I did do some reading, and my sources are, among others: " Photographer's Guide to Privacy" by The Reporters Committee for Freedom of the Press, a nonprofit organization providing free legal assistance to journalists (http://www.rcfp.org/photoguide/); Bert P. Krages, an attorney and author of the Legal Handbook for Photographers, has a short PDF document called "The Photographer's Right" (http://www.krages.com/phoright.htm).

While we can engage in the mine-is-better-than-yours game (source, that is), the fact is different interpretations are always possible, and you (or your attorneys) are certainly entitled to your own. Nobody denies than anyone in this country (or most other countries, for that matter) can take you to court for anything, but taking to court does not automatically mean winning the case.

9/20/2006 11:03:04 AM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  Mark, I do agree that even people in public places have certain privacy rights, but this is usually limited to harassment, hidden cameras, images intended to cause humiliation, etc. Since she is going down a public river in front of other people standing on the banks or where ever, it would seem that “expectation of privacy” would hardly come into consideration. This expectation of privacy is a premise that courts have used in the past regarding privacy rights in certain situations.

For example, I’m a photojournalist for several EMS (Emergency Medical Service) magazines in which I photograph paramedics treating patients in a wide variety of areas. I have the luxury of being embedded with the paramedic crews so I can get right on top of the action. Now you can imagine this can open a ton of privacy issues particularly with the recent HIPAA privacy laws that pertain to medical providers including EMS crews. Patients in “public domain” areas are usually free from privacy limitations since they are not considered to be in an area where there is an expectation of privacy. Now mind you, many times I choose not to photograph a patient in a public area due to ethical issues and causing greater stress on the patient knowing they are being photographed. However, once the patient is moved into the back of the ambulance, an expectation of privacy now exists and I must obtain a release from the patient if the patient is recognizable in the image. Of course clearly the same would be said if I were on their property, inside their home, etc. In those cases I need permission and a release.

All that being said, I agree with you that Ken needs a release since his image is not intended for any newsworthy publication and anything outside that could be construed as something for commercial gain.

9/20/2006 11:20:11 AM

Daniel O

member since: 5/30/2006
  As edifying and important as the discussion on legalities is, I think this could be very simple for you, Ken. Offer to send the photos only to the female in question, using contact info you get directly from her (ie: not using an email address that he gives you). She can decide who, if anyone, gets copies.

9/20/2006 12:37:24 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  Greetings Ray: I think you'd do well to have a lengthy chat with your city attorney and make sure he's up on both HIPPAA and privacy laws. Those zones of privacy you mentioned, in the back of the rig and the patient's home are absolute, yes. But there is a rapidly evolving area of law in various states including NY, Florida, California, Illinois and Washington, that extends that zone to various other places in public for private persons.

EMS publications aren't news publications within the meaning of privacy laws. A victim of an accident or crime has a reasonable expectation of privacy whether they're lying on the street or in the back of a rig. At least that's the way the City and County attorneys see it in San Francisco, the ways the Oakland Tribune and SF Chronicle see it, the L.A. Times and even the New York times.

Remember, privacy laws are largely creatures of state constitutional and statutory law and so vary from one state to another. What may be fair game for a news photographer in California may be off limits in Florida (under a number of State Supreme Court cases).

A reasonably good lawyer can always find a cause of action under every circumstance you mentioned, including, without limitation, negligent and/or intentional infliction of emotional distress.

I have to say, you're operating in a very very cloudy area and if you're not self-insured, you'd best make sure that your publications agree to indemnify you, and in writing, for any and all losses as a result of your taking assignments for them.

As a news photojournalist, I must also say that any time I have to start considering the ethics of what I'm doing weighed against the public's need to know, I'll take the shot but sit down with my editor AND a staff attorney to go over the legalities before it gets printed. This unfortunately (to some degree) is what the news industry has become.
;>)
Mark.

9/20/2006 3:32:08 PM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  Hello Mark! I about fell off my chair when you stated that EMS publications aren’t news publications within the meaning of privacy laws. “Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment.” The EMS magazines are a trade journal for paramedics, EMTs, doctors, etc. and clearly fall in the boundaries to “inform and educate.”

As a matter of record, I have spent an enormous amount of time researching privacy laws and specifically as to how they may affect my EMS photography. I have also been assisted by one of the largest HIPAA consulting firms in the country. My photography clearly falls well within the legal walls of privacy.

You stated that some city and county Cailfornia attorneys and publication would see photos of a crime or accident victim in a public area as one with a reasonable expectation of privacy. It seems though the California Supreme Court does not see it that way at all. In 1998, the case Shulman vs. Group W made its way to the California Supreme court. By the way, the next two paragraphs comes from one of my publishers.

This case stems from a television film crew riding along with an air ambulance in Southern California. The flight crew responded to the scene of a motor vehicle collision with a camera and microphone, recording the events on scene and in the aircraft en route to the hospital. The patient later sued the producers of the show for intrusion.

The case eventually found its way to the California Supreme Court, which ruled that because the event was newsworthy, the producers were within their rights to publish the footage without Ms. Shulman’s release. However, according to the Supreme Court, the act of recording the event in the first place may have violated her right to privacy by recording her conversations with the flight nurse and because the interior of ambulances are considered to be private places and, thus, the patient had a reasonable expectation of privacy.

Now I don’t know about you, but a Supreme Court ruling like this in California would certainly make me sleep easier at night knowing that my public images of crime and accident victims have stood up to the highest court in California. It would seem the editors of the SF Chronicle and LA Times have little to worry about as well. As far as the attorneys go, well you know, they always will take the low and easy road. Hell, they’d just rather we didn’t photograph anything at all! LOL!

Good shooting,

Ray

9/20/2006 5:51:50 PM

Slobodan Blagojevic
BetterPhoto Member

member since: 3/2/2006
  Mark,

would you share with us examples where photographers were actually taken to court and lost?

9/20/2006 5:57:46 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  In a word: No. Why? I didn't sign on here to be doing legal research and passing out free legal advice for every jurisdiction in the world. My suggestion for you, or anyone else interested in this particular issue, is drop a dime on an attorney who does intellectual property law where you live and find out the rules where you live.

OR, in the alternative, go to the law library, enlist the support of some eager law-clerk type, and ask them (kindly of course) if they would help teach you how to do your own legal research on this particular issue.

The other thing that comes to mind, is do a search for books on photographers and the law and if you start reading one, make sure it's really recent, past year or so and again, make sure you start reading the law as it applies to wherever you're either living, working, or both.

Best I can do although I've indicated how the law sees this in Ill, NY, Florida, California and Washington.

Now, as for what Ray said: If I were you I'd Shepardize Shulman and it's progeny (as lawyers say) and see how it's been distinguished in California and corresponding cases. If Shulman was decided 8 years ago, you don't imagine the law has changed at all since then?? LOL !!! I think you'll find it has. Start with Shepards and you'll see.

And, while I appreciate your research, this is NOT a problem that involves the Health Insurance Privacy and Portability Act. That's a federal statute, not a state law. The firm you referred to should have explained that.

Lastly, you referred to "television film crew". Your argument makes a long leap between "film crew" and "news" and as I said, it's not just a matter of convenience. I'll wager that if I research Shulman, I'll find a hundred ways to distinguish it from the discussion people offered here. Every case turns on its own facts and merits, not just the law and how it's interpreted. In addition, it's the cause of action sued under, not just the theory of recovery. Intrusion? You mean "invasion of privacy", yes?

You can bet that every crew sent out on behalf of the Discovery Channel carries a bundle of release forms and what they're shooting ain't news. And btw, you also oughtta look at the latest legal definitions of "news publications" and "news". Check Wests California Words and Phrases, for example and compare the citations there to ones in New York, for example. Lemme know what you find and leave me some key numbers you searched under.

Later guys.
Mark

9/20/2006 7:45:20 PM

Raymond H. Kemp
BetterPhoto Member

member since: 4/2/2004
  Since I'm embedded with the EMS crews, by law I have to abide to the HIPPA laws. Therefore, IT IS A PROBLEM! Check it out; it’s very clear in the law. Which interesting enough HIPPA basically follows the general common privacy laws that I’ve always abided by before the new HIPPA laws were enacted. That is the only reason I brought it up since my photojournalism falls into somewhat of a unique area.

You seem to know of a change of California law that prohibits photography of anyone in public domains since the ruling from the California Supreme court in Shulman vs. Group W? My research has shown nothing. The most significant change in California is the California Paparazzi law which went into effect the first of this year. But even that doesn’t change the law as it pertains to the Shulman vs. Group W ruling. Maybe you could share the law or site the court case as I have in my previous threads? I would like to be educated to any new changes.

BTW the publications that I work for are all in California and so I’ll check with legal tomorrow. They know our work and how we obtain our images.

Ray

9/20/2006 9:29:09 PM

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Photography Question 
Robert Farley
BetterPhoto Member
Contact Robert
Robert's Gallery

member since: 4/25/2006
  10 .  Would I Need a Release?
I have an image of some headstones in the fog... only the name on the front stone is visible. If I do not edit it out of the photo, would I need a release from the family?

9/1/2006 6:14:45 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  To be on the safe side (legally, rather than spiritually), if the headstone is on /in a private cemetary and recognizable - even though it offers public access - it's private property and you ought to get a release from either the outfit On the other hand, public land cemeteries and their contents are public property like parks (not church cemeteries but publicly owned and maintained burial grounds are fair game and I wouldn't worry about a release.
Take it light.
Mark

9/2/2006 9:19:33 AM

  Thanks, Mark. I am leery about it because it is a photo in the National Cemetery. I don't want to upset any soldier's family (spiritually) or the government (legally). I will probably start the legwork to obtain a release, just to be safe.

9/2/2006 7:26:56 PM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  National Parks are always open season, so-to-speak, so while it's kind and even extra prudent of you to obtain a release, it's not necessary. In fact, when you shoot commercially for a federal government agency, you're granting them the right to release your work to the public domain, thus eliminating the government's need for a release to publish your work as well. Just thought I'd mention it.
And... btw, I like your work.
Take it light, Robert. ;>)
Mark

9/3/2006 9:54:22 AM

Barbara Wenneberg

member since: 1/26/2005
  I approve pictures at a stock agency. We would have you clone out the names because of privacy issues. They may be dead but family members may still be alive.

9/5/2006 7:24:52 AM

Mark Feldstein
BetterPhoto Member

member since: 3/17/2005
  That's all well and good Barbara but as far as being prudent, it's a bit over the top. It's just not necessary. National parks, as public property carry no right to privacy per se and no releases are required. The stock agency that reps me agrees btw.

Mark

9/5/2006 10:32:15 AM

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