The Rights of those Photographed - Non Authorized or Compensated Ad

[CameraQuest]

If being photographed for an arrest mug shot is not enough, imagine that mug shot being used in a well known ad which you did not authorize and are not paid for.

As photographers we are often concerned about the rights of photographers. What about the rights of those photographed ?

See http://www.usatoday.com/story/news/...ve-convict-sues-over-use-of-mug-shot/6006593/

Stephen

 

[JRminox]

There is a difference between a photo and and address, read the article why she was miffed.

 

[hepcat]

I certainly feel sorry for her. I can't imagine how problematic it must be to have those photos out there everywhere... but unless some judge is prepared to try to overturn a huge body of law, it's doubtful she'll get anywhere.

Booking information and photos are public record, available to anyone and can be used for any purpose. AFAIK, celebrities can't even 'brand' a booking photo. I don't think there's any 'intellectual property' argument here at all. That said, she may be able to get a settlement from the owners of the website for some other tort related to harassment or libel?

 

[rscheffler]

I disagree hepcat...

While the photos and related information may be public record, that does not mean free commercial use without consent of the person in the image.

For example, US government photos, such as those publicly available on Flickr from the White House include the following clause:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

And if you click on the copyright link you get a bunch more info:

http://www.usa.gov/copyright.shtml

It's a matter of privacy and publicity rights, not copyright. From the LoC website:

http://www.loc.gov/homepage/legal.html#privacy_publicity

From the LoC: The distinctions among privacy rights, publicity rights, and copyright are best illustrated by example: An advertiser wishes to use a photograph for a print advertisement. The advertiser approaches the photographer, who holds the copyright in the photograph, and negotiates a license to use the photograph. The advertiser also is required to determine the relationship between the photographer and the subject of the photograph. If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to license the use of the photograph for all uses or otherwise waives the subject's, sitter's or model's rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation.


I worked at a newspaper and images created by the photographers can be used for editorial purposes without permission from those in the images (this is a distinction between editorial and commercial use). One day, someone in the editorial department got the bright idea to use a grungy model image from a staff-shot fashion shoot to illustrate a story about anorexia, eating disorders, or something to that extent. The model ended up suing the newspaper and won because the image was misrepresentative of her, damaging to her reputation and out of context of the original purpose for which the image was created... Just because the newspaper owned the image and has generally pretty wide leeway for how to use such images in an editorial context, it didn't mean they could do anything they want with the images...

 

[hepcat]

I disagree hepcat...

While the photos and related information may be public record, that does not mean free commercial use without consent of the person in the image...

... Just because the newspaper owned the image and has generally pretty wide leeway for how to use such images in an editorial context, it didn't mean they could do anything they want with the images...

It will be interesting to see how the courts see this case. There are valid points on both sides. I guess we'll see how it turns out if it ever comes to trial. I wouldn't want to have to be on the bench for this one. 😉

ON EDIT:

There is apparently some recent case law out of the 10th and 11th Circuit Courts that I wasn't aware of that recognize some privacy rights with booking photos that are not abridged by the Freedom of Information Act... so perhaps she will have a case. It will be very interesting to see if a local court will agree with the Federal courts.

This from the U.S. Marshal's Service:

"The USMS has consistently taken the position that booking photographs implicate
personal privacy and should not be released under the FOIA unless a countervailing public
interest is involved, i.e., the photographs somehow demonstrate something significant about the
operations or activities ofthe government. See 5 U.S.C. § 552(b)(7)(C) (exempting records from
release where "disclosure could reasonably be expected to constitute an unwarranted invasion of
personal privacy"). This principle has recently been affirmed by two U.S. Courts of Appeals in
decisions upholding USMS's refusal to release booking photographs in response to FOIA
requests. See World Publishing Co. v. Dep 't of Justice, 672 F .3d 825 (I Oth Cir. 20 12);
Karantsalis v. Dep 't of Justice, 635 F.3d 497 (I Ith Cir. 2011) (per curiam), cert. denied, 132 S.
Ct. 1141,2012 WL 171139 (U.S. Jan. 23, 2012)."