Photography Law in the United States

[Josh66]

Another part of the issue, is that while it's often legal to take the photos...it's what we do with them, that may cause trouble. And again, I think that most people are overly worried, when they don't need to be.

Most photos we take (and publish in some way) would fall under editorial or 'fair use'...and AFAIK, you don't need any sort of model release or property release etc.
Then there is commercial use...where you (or the actual publisher) would want/need a release for people in the photo. The tricky part, is deciding what determines the difference. A big case, a few years back, was against a photographer who photographed a man (Orthodox Jewish, not that it matters)on the steet in NYC. The photographer created an art print and sold/displayed many copies of the print. I believe that the photographer won the case, and it was determined that (she) didn't need a model release, even though she was making money and publishing the photo.
I think there is a distinction between publishing/printing...and mass production. So you could print the photo and do whatever with it...but you couldn't say, print 10,000 post cards to sell.

The broad term: advertising makes the difference. One photo is editorial use and permitted without a necessary release. Multi-photos as postcards constitute an advertising use in the broad sense and require a release.

I have seen some people posting here that while a release is always preferred, it is not necessarily required in those situations - even for commercial use. Nike, as one example that has fairly deep pockets. What does a release really mean to them?

 

[Josh66]

For example, and I'm not trying to "call him out", but I seem to remember KmH saying something to that effect at one point. It's been a while, and I'm not sure that I could find the thread, but maybe he remembers. I only mention KmH specifically, because as we all probably know - this is the stuff he's known for (in part, at least - on this forum), copyright laws and such...

I want to say that the post I'm remembering even also used Nike as an example. I may be wrong about that part though.


So, my question is, you have a photo that you intend to use for commercial purposes, but you do not have a release. What stops you from going ahead as planned?

 

[KmH]

A lot of people confuse editorial use and commercial use. Selling photos as art is an editorial use, not a commercial use.
Images with people in them a photographer owns copyright to are worth more if the photographer has on file a valid release signed by the people in the images.
Also once sold, the photographer has no control over how an image gets used. The photographer may know that the image is being bought for a commercial use

Selling photos is generally an editorial use. It is a good idea to have a valid release on file if you're going to use an image in a way that meets the legal definition of 'commercial use'.

But commercial users of photography do use un-released images all the time. They judge the risk of a lawsuit low enough it can be acceptable.
In other words, they figure the image will make them profits that are many more times the cost of going to court having been discovered using an unreleased image.

 

[flow]

#4 - Aircraft in flight is a problem? I've done it, I've seen other people do it ... or is it just not to interfere with flight crew doing their thing, and no pictures of anything 'sensitive'? (I imagine marshals would start getting antsy if they saw you getting up close and personal with the cockpit door lock for example.) But a snapshot of people (people you know, not running up and down the aisles shooting at strangers) should be fine, right? I'm not hauling out giant (weaponizable, probably, if you ask HS) lenses or setting up a tripod in front of the beverage cart or anything.
Caveat - I recognize we should have enough common decency to not fire off a flash in a darkened cabin on a night flight.

 

[Gavjenks]

#4 - Aircraft in flight is a problem? I've done it, I've seen other people do it ... or is it just not to interfere with flight crew doing their thing, and no pictures of anything 'sensitive'? (I imagine marshals would start getting antsy if they saw you getting up close and personal with the cockpit door lock for example.) But a snapshot of people (people you know, not running up and down the aisles shooting at strangers) should be fine, right? I'm not hauling out giant (weaponizable, probably, if you ask HS) lenses or setting up a tripod in front of the beverage cart or anything.
Caveat - I recognize we should have enough common decency to not fire off a flash in a darkened cabin on a night flight.

Some major airlines have policies against camera use at all.

 

[vintagesnaps]

If you don't have a release for either commercial use or retail use, and your photo is used by yourself or by a company to whom you sell it (especially if it may be online or in an ad) it could be that the subject might see it being used for your profit without their permission. It seems like it would be better to get a release signed if you expect you may want to use a photo in some way to make money.

ASMP has had a pocket release available that's designed for a photographer to carry along, and I think now they have an app for it. I'd rather not be in a position of having to deal with a problem later that could have been avoided by getting a release up front.

 

[Gavjenks]

If you don't have a release for either commercial use or retail use, and your photo is used by yourself or by a company to whom you sell it (especially if it may be online or in an ad) it could be that the subject might see it being used for your profit without their permission. It seems like it would be better to get a release signed if you expect you may want to use a photo in some way to make money.

ASMP has had a pocket release available that's designed for a photographer to carry along, and I think now they have an app for it. I'd rather not be in a position of having to deal with a problem later that could have been avoided by getting a release up front.

Theoretically, you can legally profit from their image without their permission. NOT for advertisements, but if you're just selling an image of them as a fine art print, for example, and it's an image of them in public / visible from public, you don't need their permission to post it and sell it for profit, because it's editorial (assuming it does not paint them in a slanderous light, etc.)

In reality, this is probably pretty risky, because you don't want to be sued in the first place, even if you are "supposed" to win such a case, or indeed even if you DO win the case (still expensive and time consuming), so yes releases are always best practice.

 

[vintagesnaps]

Selling a print I think falls under retail use. Editorial would be a photo being published in a newspaper etc. Licensing Guide | American Society of Media Photographers

If you don't have a release you could be potentially limiting your options in using the photo. The last paragraph on why this is taken seriously is interesting reading.
Property and Model Releases | American Society of Media Photographers

 

[Gavjenks]

Selling a print I think falls under retail use. Editorial would be a photo being published in a newspaper etc. Licensing Guide | American Society of Media Photographers

If you don't have a release you could be potentially limiting your options in using the photo. The last paragraph on why this is taken seriously is interesting reading.
Property and Model Releases | American Society of Media Photographers

From your website:

Thus, privacy issues typically arise when an image is used for purposes of trade or advertising. That is, it’s not the picture, but how it is used that determines the need for a release. For instance, an image that is printed in a newspaper, shown in an exhibition or reproduced in a book might well be immune from a privacy suit. But the commercial sale of coffee mugs or t-shirts with the same image would probably not enjoy such protection. An advertisement almost certainly would not be immune.

emphasis mine.

* Another link from a lawyer supporting the notion that "commercial" is pretty much limited to pure advertising purposes, not gallery art prints or books:
Photo Attorney: Commercial vs. Editorial Use of Photographs of People

* Some other sources seem to suggest that once it is commercial, it doesn't count. Although these all seem to be uncredentialed bloggers with no court cases cited, etc.

* I can't find any court precedent of a gallery print or similar lawsuit that actually ended in a ruling in favor of the unreleased model. Doesn't mean they don't exist, though.



Conclusion: It seems really murky/unclear, but actually leaning in favor of gallery use being okay. This does not mean you should just recklessly sell stuff in a gallery with no consideration of the risks. Certainly, you should always opt for a model release whenever humanly possible. However, you should also not just assume that any photo without a release if out-of-bounds for fine art sales. If you have a fantastic photo that you think could sell for a large amount of money, and you don't have a model release for it, then it may very well be worth it for you to invest in a lawyer consultation about your specific intended usage and whether indeed there is any precedent for civil suits regarding that / what your risk is. Instead of just assuming it won't work, and throwing away large profits.

 

[grafxman]

I am sure however that Local, County, and State Law cannot violate US Constitutional Rights.

:mrgreen::mrgreen::mrgreen: This is one of the funniest things I ever read here! :mrgreen::mrgreen::mrgreen:

 

[vintagesnaps]

Yes commercial includes advertising; selling prints I think would be retail (making a profit from the sales). It could depend on where photos are being sold, there may not be a need for a release to sell a print at a craft fair or art show but beyond that could be where you'd need a release to be covered for further usage.

That photo attorney link is not completely current, it's seven years old and the most recent workshops are from three years ago (if you click on Get more info. - it connects to nothing; the link to a Sept. blog connects to nothing; only the info. on selling the book seems active). Professional photographers' organizations provide reliable information and guidelines and ASMP has resources I've used but there are other organizations as well like PPA. Anyone can write a blog, it doesn't mean they have any particular expertise.

It might not be necessary to have a release for a photo displayed in an art show or a gallery, and selling it would be one copy of the photo - one print sold for someone's personal use. That would obviously be more limited than other potential usage.

It would be an extreme situation to have one photograph potentially worth so much that a photographer could hire an attorney just for that; having a release would make it more realistic that a photographer could make real use of an image and prevent problems after the fact.

 

[skieur]

I am sure however that Local, County, and State Law cannot violate US Constitutional Rights.

:mrgreen::mrgreen::mrgreen: This is one of the funniest things I ever read here! :mrgreen::mrgreen::mrgreen:

Sorry, let me rephrase that. Local, County and State Law is often produced by those ignorant of the American Constitution. The Civil Liberties Association or a constitutional lawyer can get involved in conflicts with individual rights.

 

[Poley]

Sorry to bump this year old thread. This was sure helpful to me. I only recently started taking photos in my hometown (usually hand held travel photographer) and 2 out of the 3 times this week, i run into these busybodies. I really wish people would mind their own business. I was thinking why didn't i fight for my rights to take pictures in public places.

Disclaimer #3 seems to be very good advice. My first confrontation was a few days ago. I was in the city park doing AEB/HDR shots, camera on tripod pointed at city hall which was a few hundred feet away in front on me (its huge, even with my 11mm) . Fast forward 3 min later. 500ft to the west of me is a woman with her children and a stroller, making her way in my direction. OK fine, I wait thinking she just wants to cross the park. Well she starts talking to me. I'm listening thinking she is begging for money like many people in the area. She starts going off about release forms, demanding to see my photos to make sure i'm not taking photos of her. I explained as nice as i could, pointing to city hall and that she came from nowhere near where my camera was pointing. Noting i say appeases her. I finally decide enough is enough and i start leaving, shes still screaming at me that she is going to sue if I post any photos of her online. Im pretty sure now that if i didn't leave some of the other unsavory characters would get involved, beat me up or god forbid stab me as mentioned above.

Odd part is i head to Boston which is 45 miles west of me and i don't run into any problems now when i'm thousands of miles away in more impoverished nations.

 

[Stickymoose]

The only thing I ever have a problem with is people taking wreck scene pictures. I'm an A-EMT and I will take photos of some cars and scenes for reporting purposes, and teaching so I can show my students new technique. However I will never get a camera out until every patient is clear of the scene. That's someone's most vulnerable moment I can't justify exploiting that for a good shot.