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Category: New Questions

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Photography Question 
Ken Barrett
BetterPhoto Member

member since: 3/13/2004
 

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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