Photographer sued for portrait

[Matthew]

All photographers, and street photographers in particular, should take note of this case developing. Let's pray the courts rule on the side of the photographer. It's things like this that make me want to become a copyright lawyer so I can just possibly bring some sanity to the world.

http://www.gothamist.com/archives/2005/06/26/photographer_sued_for_taking_portrait.php

 

[nwcanonman]

People will sue today for anything at anytime. Doesn't matter to me if he wins or loses, others will still sue regardless.
Just a sad part of living these days.

 

[einolu]

Intersting. I was just in new york and a guy yelled at me for taking his picture. First I tried to convince him why it was okay, but his only response was "I dont like it", so I just apologised and walked away. Lucky for me I wont be publishing a photography book any time soon.

 

[JoeFriday]

wouldn't it be great if every photographer on the planet refused to take that jerk's photo from now on?

 

[sf]

people. . .

people. . .

It is things like this that make it an embarrassment to be human sometimes. Such self-centered, weak minded thinking on the part of the subject, Erno whatever. Boy is he in for a surprise when he finds out that art is divine and he's just advertising his colorless personality to the world.

 

[Gabriel M.A.]

So...can they sue the departments that use cameras that take pictures of speeding cars to expedite speeding tickets? They do profit from the pictures...

 

[XAos]

Commercial work, no model release. ergo... nothing to get worked over up here. Learn from perhaps, but no new caselaw will come out of this.

 

[egpj]

I think you are right XAos. Even though I do not agree with it. He was working on a commercial project even though he was photographing in public place. Really everything in publlic should be fair game. But how about those paparrazzi photographers. They do not have permission but they sell their stuff for big money.

 

[XAos]

Paparazzi work because 1) as much as they are hated, the stars need them, and 2) the people who buy pics from the paparazzi operate so far on the fringe that they plan on getting sued anyway, and plan accordingly. Electric Bill, Ink, Photographer pay, Legal Bills, etc... Unless the penalties started to get really really harsh, I think they just plan on ponying up to stay in the game.

 

[mikebrice@mac.c]

Also, paparzzi sell to editorial outlets - some may be on the fringe - but they are editorial outlets.

The difference is in this case the photographer used the picture for commercial use as opposed to editorial.

Fact is, if someone took my picture and was selling it for $20,000, I would want a share.

 

[Paul T.]

The actual reason is the editorial-related one; you have a right to take photographs in public, when the result is used in editorial products, or for news-related photos; this is generally categorised as 'fair use'. US law is unfortunately complex, and varies from state to state.

If this case succeeds, however, it will be a new precedent, which will make US law more similar to the French law, which has affected how photographers work in that they now need a model release for many uses where none was need previously.

 

[pvdhaar]

I may represent a minority view here, but I don't think just being in a public place equates to being 'fair game'. The key operative should be 'fair use'. Consider that portraits can be published in a context that runs against one's convictions, beliefs or even taste. So if you're conducting personal activities outside, you shouldn't have to worry about all that.

 

[Matthew]

My take on whether the use of the photos is commercial, fine art or editorial in nature is that since the photo is not used to market or advertise any product other than the photograph itself and accompanying book of photographs, it is not a commercial use. An argument can be made for either editorial or fine art. In either case the issues around a model release is much murkier.

Whether or not money has been made of the photograph itself has little bearing on the case. News photographers make money, beyond their salaries or day rates, off the individual photos they sell all the time but aren't required to get model releases as long as the photo remains in editorial or fine art, and not commercial use.

There are plenty of fine art books published of photos taken in public places without permission. Does Martin Parr get model releases? It could certainly be argued that his photos don't place their subjects in a particularly flattering light much of the time. These images were not made in connection with any previously conceived news story.

If you consider that the photographer's use of the image is commercial then, yes there is no new case law here, but if the use is otherwise and should the ruling go against the photographer then the bounds of permissible creative expression in public spaces will be severely curtailed.

 

[Skinny McGee]

I wonder how the guy even found out about his picture being in the book or in the gallery. Most people who got to photo galleries and buy photo books are usually in to photography aren't they. Just curious

 

[DerekF]

Here in Québec a few years ago, there was a similar case that was ultimately brought before Canada's Supreme Court. It involved an individual who sued a publication because it used her image without her permission (the photograph of her was taken while she was sitting on the steps of a building). In a nutshell, our Supreme Court concluded that a photographer's freedom to take photos should not override one's right to privacy, but the justices qualified that by saying that certain individuals could be considered "exempt" from an expectation of privacy, such as people of high profile and of a certain degree of notoriety. I haven't followed the consequences of the case all that closely since the ruling came down a few years ago, but if I recall correctly, it mainly applied to Québec at the time, since our law is based on (French) civil law as opposed to the common law system practiced elsewhere in Canada.

More reading here for those who are interested:

http://www.zvulony.com/photograph_rights.html (scroll down to "The Right To Privacy")
http://www.canlii.org/ca/cas/scc/1998/1998scc31.html (the legal ruling)
http://www.presscouncil.org.au/pcsite/apcnews/may99/privacy.html

 

[iggers]

The Quebec approach seems reasonable. Being out in a public place should not confer an implied license to have a photographic portrait of yourself - one that clearly identifies you - published in a mass circulation publication. Reasonable exceptions arise where there is no reasonable expectation of privacy, either because you happen to be at a "public" event or are yourself a public figure. Joe Blo and Jane Doe probably should be entitled to object if a photo of them sitting quietly on a bench is published, no matter how artistic it may seem. On the other hand, a crowd shot wherein individuals who are shown are not highlighted, probably would not expose the individuals to publicity in a way that they should be entitled to object. As well, I would think that the degree of exposure is relevant: If a photo of you, random pedestrian appears in a student newspaper, circulation 500, it seems de minimus, and a complaint, let alone a lawsuit, ought to be answerable with "Too bad, so sad."

 

[stet]

I'm sitting here reading this with my girlfriend, and she brought up a good question. Without going too far OT or trying to be vulgar, legally what's the difference btw. this guy shooting uknowing subjects and someone who rigs up a camera to shoot up girls' skirts in public? Mods, go ahead and delete this if it's out of line.

back OT, someone on that blog has posted a link to the Nussenzweig photo:
http://www.guardian.co.uk/gallery/image/0,8543,-10904347243,00.html

 

[FrankS]

The obvious difference would be the subject matter. 😉

 

[kiev4a]

Unbelievable. A court that actually made a common sense ruling. Hooray.

Here in Québec a few years ago, there was a similar case that was ultimately brought before Canada's Supreme Court. It involved an individual who sued a publication because it used her image without her permission (the photograph of her was taken while she was sitting on the steps of a building). In a nutshell, our Supreme Court concluded that a photographer's freedom to take photos should not override one's right to privacy, but the justices qualified that by saying that certain individuals could be considered "exempt" from an expectation of privacy, such as people of high profile and of a certain degree of notoriety. I haven't followed the consequences of the case all that closely since the ruling came down a few years ago, but if I recall correctly, it mainly applied to Québec at the time, since our law is based on (French) civil law as opposed to the common law system practiced elsewhere in Canada.

More reading here for those who are interested:

http://www.zvulony.com/photograph_rights.html (scroll down to "The Right To Privacy")
http://www.canlii.org/ca/cas/scc/1998/1998scc31.html (the legal ruling)
http://www.presscouncil.org.au/pcsite/apcnews/may99/privacy.html

 

[Matthew]

I entirely disagree with the notion that photographing someone in a public place, whether or not they are considered a public persona, going about their daily business is an invasion of privacy in any way whatsoever. No personal information is included in the photograph, nothing that gives away any genuinely intimate details about the person that any passerby could not glean at a glance. Using this sort of image in an advertising context without expressed permission would be unacceptable, but in an editorial or artisitic context I find the idea that it should be illegal to publish without some sort of contract in place to be entirely batty. The entire body of work produced by Henry Cartier Bresson would likely be illegal if this was the case. Ditto the work of Garry Winogrand, Alex Webb, Mitch Epstein, David Alan Harvey, Raghubir Singh. (I could continue listing names for an entire page.) A great deal of photography since the invention of the Leica would not have been created legally. It may not be polite to engage your subject in certain situations, but it is a dangerous dangerous thing to be legislating politeness.

I accept that there may be some public situations or subject matter (such as described above involving mobile phone cameras and skirts) which are exception to this and would constitute an unreasonable intrusion into someone's privacy, however.

Then consider the fact that this entire discussion wouldn't even be happening if the photo was made in a third world country where there is no money and therefore no interest in pursuing such cases. If we find it acceptable to photograph the downtrodden without gaining permission shouldn't we also be subject to that attitude?