Business and Legal FAQ

Membership_120x250There is only one answer to every question ever put to a lawyer. That answer is, “It depends.” The reason for this is that the answers to legal questions are always based on two things: the law and the facts. The lawyer may know the law, but he/she probably won’t know all of the facts, and a slight change in what seems like a minor detail can result in a completely different answer. Also remember that there is a huge difference between not being held liable for something and not being sued for it. In our legal system, almost anyone can sue almost everyone for almost everything. Winning is a separate matter, but being on the receiving end of a lawsuit is almost always expensive, stressful and time-consuming. Your willingness to leave yourself open to a possible lawsuit, even one that you will win, should take into account your ability and willingness to deal with the costs, both hard and soft, of litigation. The following answers, then, are generalizations, and they may or may not apply to a particular situation, depending on the facts.

When do I need a model release?

The “it depends” factors here are which jurisdiction(s) we are talking about, who the subject is, and what you are going to do with the photos. Model releases are used mainly because of rights of privacy. Those are matters of state law, so you could have very different answers depending on whether you are talking about New York or California. Some states also have rights of publicity, and if your subject is a celebrity or a public figure, you may have some additional restrictions.

The basic, general rule is that you need a release from people to use photographs showing a recognizable likeness of them for purposes of trade or advertising. The other side of the general rule is that you usually do not need a release for strictly editorial uses. So the first question is whether the person is recognizable from the photo. If not, you don’t need a release. Whether a person is recognizable is generally a very easy standard for the person making the claim to meet.

If the person is recognizable, the second question is whether the proposed use is for an advertisement (which is very broadly defined). If it is, then you need a release. If it is not, then you go to the next question.

That question is whether the usage is for a commercial purpose, such as a corporate brochure, product packaging, a calendar, a website that is intended to enhance or promote a business interest, etc. If it is, then you need a release.

What are the differences between having a photograph appear in an ad and in a magazine's editorial pages?

The two differences are the need for model releases (see the last answer) and money. Generally, photographs used for advertising are worth substantially more money to everyone involved than photographs used for editorial purposes.

If I photograph a pro baseball-football-basketball game, can I sell the pictures for editorial use? For ad use?

Here, the answer will depend largely on the fine print. When you go into a ball park or arena, there is almost always some kind of fine print that you need to read. Sometimes it is on the back of your ticket, sometimes it is posted as a notice somewhere on a wall, and often it is on both. The chances are pretty good that the league and/or club has told you that you cannot make any commercial use of any photographs unless you have their permission. If you are a pro and shooting from a press area or some place other than the stands, your press pass/credential will read like a Reader’s Digest version of an insurance policy or the Internal Revenue Code in outlining what you can and cannot do. That fine print creates the rules, and you are generally agreeing to those rules by using the ticket or press pass.

Some leagues and/or teams have taken the position that you cannot license or publish any photos of their athletes or showing their uniforms or stadiums without their permission because the photos show registered trademarks. That may be their position, but it is not necessarily correct. As with model releases, it depends on the details of the use of the photograph. Not every use showing a trademark is a trademark use. To violate a trademark, the use has to be likely to create confusion in the mind of the public as to the source of origin of the product; or it has to be likely to make the public think there is some kind of implied endorsement of a trademark owner or its product, or other relationship, by another company or person; or it has to damage or reduce the value of the trademark in some way.

So, if you have the legal right to make the photograph, and if you aren’t violating the contractual rights in the fine print, you can probably license the use of the photos for editorial purposes. You may be able to license them for advertising use, if the way the ad looks and the identity of the advertiser are not likely to cause confusion in the mind of the public, lead it to believe there is some sort of relationship between the parties or endorsement of one by the other, or diminish the value of the mark. This, of course, assumes that you have a release from any person who is recognizable, including the people in the background.

If I'm photographing in a public place such as Times Square, can a policemen prevent me from using a tripod?

As a practical matter, a police officer can do almost anything he or she wants in this kind of situation. By the time you get through protesting or appealing the officer’s actions, the photo you wanted to make may well be gone. As to whether he or she may prevent you from setting up a tripod, it will depend on exactly where (what city, town etc.) you are (because local ordinances and laws vary) and the specifics of the situation. Setting up a tripod in Times Square may well be perfectly fine at sunrise on a Sunday morning, but may be a public nuisance and create a risk of injury a few minutes before curtain time on a Saturday night.

Am I legally permitted to photograph strangers in public places? Are city and state parks considered public places?

Yes, you can photograph strangers in public places, unless you do it to such an extent and in such a way that you become a harasser or nuisance to the public instead of a photographer. City and state parks are generally public places. Figuring out what is or isn’t a public place is usually easy, but not always. If the public is allowed free and unrestricted access to a place, like streets, sidewalks and public parks, it is probably a public place (although parts of sidewalks and what appear to be public parks may be privately owned). Once you go indoors, you are probably no longer in a public place, and some person or entity can probably make the rules, including restrictions on making photographs.

Can a property owner prevent me from taking pictures of his building, car, etc. from the outside? From the inside?

If you are taking the picture from a public place, and the subject is visible from that place, the owner does not have a legal right to prevent you from making photographs (although you could end up with broken equipment and/or anatomy). The answer is different if you are taking the picture inside (or on) private property. There, the owner gets to make the rules, and if he/she/it says no photos, then you can’t take photos.

If a magazine refuses to return pictures I have sent them, or loses them, what is my recourse? How can I determine how much such pictures are worth?

There are white papers, chapters, articles and even whole books on this subject, so its very hard to answer this in a few words. Generally, there is no responsibility to take care of, or return, works that have been received unsolicited.

Things are different where the magazine has requested or commissioned the submission of the pictures. The key is in preventive medicine or, in this case, good paperwork. When you deliver the photos, you should have at least a delivery memo that accompanies the photos. That document should lay out the important conditions under which you are handing the photos over to the recipient. Those conditions include the ways and extent to which the recipient may use the photos, how much the uses will cost, the responsibility of the magazine to keep and return the photos in the same condition in which they are delivered, and a reasonable value for each photograph that the magazine will pay if they are lost or damaged.

For valuation, let’s assume that we are talking about professional quality, original slides or negatives. Let’s also assume that there are no in-camera or digital dupes, or similar originals that are almost indistinguishable from the originals. Remember that, for purposes of reproduction, there is a huge difference between an original and a dupe. Also remember that the destruction or damage of an original is the functional equivalent of the destruction of the copyright to the image, since there is no way to exercise that copyright.

Valuation is troublesome because every image is unique, some are worth very little, and some are worth a small fortune. Unless the specific image that has been lost or damaged has an established earnings history, valuation becomes very difficult. An established photographer is in a fairly decent position to look back at his past earnings and make a reasonably accurate estimate of what a particular photograph would be likely to yield over the life of the copyright. Really unique images and photographers who have a less consistent earning pattern raise bigger problems. To try to deal with this, there have been more than a few court decisions that have suggested that, without any better proof, professional quality original photographs may have a value of $1,500. However, even if you use a $1,500 valuation in your paperwork, you will have to be ready and able to prove to a court that $1,500 was a reasonable estimate of the true market value of the image, otherwise the court may throw that agreed-upon valuation out as an unenforceable provision.

If I sell one-time rights only to a magazine to use my photo on the cover, can the magazine also use the magazine cover with my photograph in ads to promote the magazine?

Here, the “it depends” factor is the exact language you used when you granted the magazine the rights to use the photograph. These days, most magazines will be sure that the agreement gives them extremely broad rights. For purposes of this discussion, though, assuming that you and the magazine did not say anything, one way or the other, you would fall back onto the custom and practice of the trade to fill in the unspoken provisions. In this case, the general practice is for magazines to use reproductions of their covers and the photographs on the covers for advertising, so it would probably be allowed. Because of that, you should never submit a photograph of a recognizable person to a publisher for use on a cover unless you have a model release.

If a magazine publishes a drawing or photo which is obviously a copy of a photograph I sent them, what is my recourse?

Copying isn’t always as obvious to the courts as it looks to the people who are certain their photos have been copied. You cannot copyright an idea or concept, only your expression of that idea. What may look to you like an obvious copy of your photograph may turn out to be just a copy of your idea, not your photograph.

If you really believe a magazine has copied your photo, or has had someone else do it for them (let’s say you gave them a photo, but they didn’t want to pay the fee that you demanded for them to publish it, so you think they had someone else replicate it for less), there are several ways you can proceed. You can consult a competent copyright lawyer, but that may be too expensive compared to the amount you might be able to get if you sued and won. On the other hand, especially if you have any kind of on-going relationship with the magazine or someone there, you can approach them with the two images, explain the situation, and offer to settle the matter for a reasonable fee for granting the magazine a retroactive license. If they refuse or if you otherwise can’t negotiate a settlement, you are back to the lawyer’s office.

As a practical matter, much of what you can do depends on whether you have registered the photo at the U.S. Copyright Office before the photo was copied (or within 3 months after the photo was first published, even if that is after the copying). In that case, if you sue for copyright infringement and win, you are entitled to ask the Court to award what are called statutory damages and to make the other side pay your lawyer’s fees. This last factor is often the practical difference between being able to find a lawyer who will take your case and not.

If I photograph a man doing something silly such as slipping on a banana peel and the picture appears in a newspaper, can he sue me for holding him up to ridicule?

A lot depends on the situation, including where the photograph was taken, what, if any caption, is included by the newspaper with the photograph and what would a reasonable person infer from the photograph about the subject of the photo.
If the photograph was taken in someone’s home, the subject could have legitimate privacy issues.  If the photograph was taken in public, there is an understanding that one cannot have the same privacy expectations.
Then it depends on what, if any, caption the newspaper assigns the photograph.  If the caption says something about the subject that is untrue (“This person was drunk.”) or leads a reasonable person to believe the person to be ridiculed or shamed then there could be concerns as well.
You always want to be mindful of your jurisdiction and speak with a local attorney when you have specific questions.

What are the rules about photographing nudes?

This is a huge and volatile topic, so let me try to narrow the scope a little. First, let’s assume we’re talking about subjects who are legally competent adults. Let’s also assume that you are taking the photographs with the models’ knowledge and permission and that they have given you valid model releases. That leaves the question of whether the photos are obscene. If they are, you could be charged with violating state and/or local obscenity laws.

What is obscene? The U.S. Supreme Court has struggled with this question. Justice Potter Stewart characterized it as “trying to define what may be indefinable.” The Court’s guidelines, if you can really call them that, are hardly more than the instinctive reactions of the people in the street:

“(a) whether ‘the average person, applying contemporary community standards’ would find that work, taken as a whole, appears to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, political or scientific value.”

The kicker is the “community standards” part, especially in an internet era. A San Francisco couple running an internet website recently found themselves indicted for violating obscenity laws in Tennessee, and the community standards in those two communities are presumably quite different.

If I take pictures in an art museum which allows photographs to be taken and I photograph some paintings or sculpture, can I sell the photographs?

As with stadiums and other private places, the owners get to make the rules, and many museums that allow photography place restrictions, such as requiring that the photos be for personal use only and may not be sold or used commercially. Many also forbid flash photography, in order to prevent both fading or other damage to the art and annoying distractions to the other visitors.

Once you get over these hurdles, the question becomes whether the works that you are photographing are copyrighted or in the public domain. If you are looking at old masters and works that were created a very long time ago, you probably are not in danger of violating anyone’s copyrights. However, for anything created during this century or the last, you stand a good chance of copying copyrighted materials, and your best (i.e. safest) bet is to assume that you cannot copy them (which includes making photographs of them) without permission. As a practical matter, the chances are pretty good that nobody will ever know, or care, if you just make photographs for personal use. However, even that may be illegal, and any use beyond that is likely to be both illegal and detectable, and you would be proceeding at your own peril.

What is the advantage of copyrighting a photograph and how do you do it?

You copyright a photograph the moment that you click the shutter, assuming that the camera is loaded with film (or some digital memory medium). You do not have to do anything more. However, if you ever plan to do anything with any of your pictures beyond putting them in a photo album or up on your walls, you should register them at the U.S. Copyright Office. If you ever have to sue someone for infringement, you must register before the suit, and there are huge advantages to registering early (before the infringement or within 3 months after the date of first publication). There is a fee for the registration.

The ASMP Copyright Tutorial walks you through the procedure. And, of course, the U.S. Copyright Office has lots of information available both in print and on the web. The easiest place to get started is the Copyright Office Website.

If I photograph a large group of people and plan to sell the picture, would I need model releases from every person?

If you just want to sell fine art prints, or even posters, you should be OK without releases. If you license the picture for use in a book, you should be OK without any releases as long as you don’t allow the publisher to put the photo on the cover of the book or use it in promotional materials. If you put it on coffee mugs or allow its use in any way that would be considered purposes of trade or advertising, you are probably going to be liable for the invasion someone’s right of privacy unless you have gotten releases from every person who is recognizable in the photo. A bank once made a photo of about 300 of its own employees standing in one of its lobbies. When the picture ran in an ad campaign, some of the employees sued the bank, and won.

If I photograph my young children in the bathtub and send the film out for processing could the processor turn the film over to the police? Could I be prosecuted child pornography?

This area is a real hornet’s nest of emotions and political sensitivity. Yes, the processor could, and might, turn the film over to the police, and yes, you could be prosecuted for child pornography. You wouldn’t necessarily be convicted, but the whole process would be enough to ruin or at least severely damage your life and reputation. Just ask some of the photographers to whom this has happened.

There are occasional reports of over-zealous lab employees inappropriately blowing the whistle over photographs no more offensive than the classic naked baby on a bearskin rug. These days, you are better off using digital cameras and printing your own photos than using a lab where unclothed children are in the picture.

If I sell the electronic rights to a photograph to a magazine and subsequently someone downloads my image and uses, what is my recourse?

It depends on exactly what electronic rights you granted. Usually, you would not have granted the magazine the right to authorize people to download and make further uses of the images. Depending on the exact uses made by the consumer, you may have an enforceable copyright infringement or you may not. If he uses the image to illustrate a college thesis, the usage might qualify as a fair use. If he uses it in a sales brochure for the company he works for, you have an infringement. Your recourse in that case is to make a demand for payment and/or send a cease and desist letter, both of which are best prepared by a copyright lawyer.

If I stand outside a store and take a picture for publication of someone inside, either through the door or store window, is that a violation of some sort?

Probably not. Standing in a store with glass windows and doors is not a situation that would give a reasonable expectation of privacy.

When does the right of privacy protect someone from having his picture taken?

When a person has taken steps that would give rise to a reasonable expectation of privacy. If you go into a room with closed doors and window shades pulled down, you would probably have a reasonable expectation of privacy, and someone putting a fiber-optic lens under the door and taking your picture would probably be liable for invading your privacy. If you are sitting at a window table in a restaurant, you are probably fair game.

If I take a picture of a seedy neighborhood and a magazine editor writes a caption describing it as a red light district, can I be sued for defamation by someone shown in the picture?

Yes, which is why your paperwork with the magazine has to make it clear that there is no model release (if there is none). Ideally, the magazine should agree to indemnify the photographer against any damage from publishing the picture, since the magazine is the one that controls the use of the photo, and it is the use — not the photograph — that creates the liability. Unfortunately for photographers, in today’s world, that seldom happens.

If I photograph a clown in the circus and the picture appears in a magazine, can the clown sue me for depicting his trade dress without permission?

If the photo appears as an editorial illustration, rather than an advertisement, he could sue you, but he probably would not win. Just like trademarks, trade dress can be shown in photographs as long as the use does not create confusion in the mind of the public as to the origin or ownership of the trade dress and the usage doesn’t damage the value of the trade dress.