[shuttertalk]

Some court cases which might place a bit of fear into every photographer's heart...
http://blogs.photopreneur.com/5-nightmar...ourt-cases

I found the last two eye-opening - actually the last one I can sorta understand the release form thing, especially when used for a commercial publication. But the fourth one - I mean most of us take street photos, sometimes with people in them, intentional or not. Some of us even sell our works, have put on exhibitions and more... are we covering our bases enough? Or am I just being paranoid?

[matthew]

Maybe it's the Canadian in me (we have very restrictive requirements for obtaining a subject's consent) but those cases seem pretty straightforward.

Case #1 is clear copyright infringement, which is punishable by a $20,000 fine per use.

#2 mentions that the work was put on Flickr with a Creative Commons license, but doesn't say which one, which might change the photographer's ability to go after the company for infringement. Either way, the subject didn't consent to let her image be used, and the photographer can't assign rights that don't belong to him. The photographer may be able to sue the company, but unless there was a release, the person pictured can sue the photographer as well. If it's an identifiable person get a release if you're going to assign any rights.

#3 Corbis values original images at $1500 to $2000 each, so hopefully the court will award Mr. Usher damages greater than the $12 each that the French court awarded another photographer. This is one that really does scare me, but these were analog originals that were lost, and using digital images with their ease of duplication should make it a thing of the past.

In #4, the plaintiff lost and the photographer won because he was photographed in a public place and the work was artistic, not commercial, photography. As my Californian step-mother says, "you can sue for anything, but that doesn't mean you'll win". Incidentally, in Canada, the photographer probably would have lost. Even in public, an identifiable individual who is essential (rather than incidental) to the image must give consent if the image is being published. There are a few exceptions, essentially for newsworthy or significant individuals, but a Quebec court has ruled that a photograph is a record of personal information, and is covered by the same federal legislation that governs banks and insurance companies. The subject of a photograph can now sue for invasion of privacy even if they are in a public place.

#5 is another case of a photographer licensing an image for money without the consent or compensation of his subject. I'd sue him, too.

It's interesting that cases #1 and #5 are essentially the same -- someone is making money by using someone else's image without consent.

[DJ1234]

Really interesting post. It's brings up a question for me. If I put something on facebook, or anyother internet site, and someone else uses it, how can I prove that it was mine? I understand in the article most of them were downloading them to stock photo sites inorder to sell them, but what keeps someone from pulling something off the net and using it?

[Toad]

Really interesting post. It's brings up a question for me. If I put something on facebook, or anyother internet site, and someone else uses it, how can I prove that it was mine? I understand in the article most of them were downloading them to stock photo sites inorder to sell them, but what keeps someone from pulling something off the net and using it?

Nothing really. It happens all the time. Even badging your images with a copyright symbol does nothing to stop the practice. They are easily removed - which is why I make my copyright on my photos very subtle - they only stop honest people.

Case #4 above makes me wonder about taking photos of people and putting them on a website such as Flickr or here. Does publishing a photo like that make us liable for damages - even if we are not selling or making any profit from the works?

[matthew]

I read about another interesting lawsuit this morning:

http://wikiprophoto.blogspot.com/2007/11...s-you.html

LVMH sued Britney Spears, Sony BMG and MTV Online for the unauthorized use of its trademarks in a music video. No release: LVMH won.

[ADK_Jim]

In the US there is currently an effort to change copyright law in a way that would make it easier to infringe your copyright <http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00178>. The bill is before our Congress now. Although this would only change US law it has the potential to affect photographers and artists in other countries because of the Internet. I have written my legislators repeatedly opposing this change and encouraged others to do so also but the battle is not yet won.

In short the new terms would require visual artists of all types to digitize and submit to commercial databases every work, past present and future. Failure to do so would, in effect, mean that your work was orphaned (copyrights abandoned) and make it fair game for anyone to use in any way they chose. If the artist discovered the infringement, all the infringer needs do to avoid punitive judgment is tell the court that they made a "reasonable effort" to locate the copyright holder but could not locate him/her. The artist would have to prove that the infringer did not make that effort or settle for what the court determined to be a reasonable use fee (no punitive damages) whether or not the artist would even have approved such use in the first place. Most "reasonable fees" would not even cover the cost of taking the infringer to court. I don't know if comments from people in other countries would carry any weight but I encourage anyone interested to write to the people listed on the Illustrator's Partnership site anyway no matter where you live. As they point out this would violate international copyright agreements.

As an aside I have noticed while surfing photography sites that many if not most photos on the web have no identifying data in the EXIF and IPTC fields. Most have nothing other than the file name which is usually not even the original name but something generic given during downsizing for web use. If you are posting images to the Internet, don't make it easy for people to steal your work. Apply a watermark but that is not enough. There a programs out there that have been written specifically to remove watermarks. Fill in the IPTC fields and add your copyright information in the EXIF data. Those can be stripped out too but make them work to steal it.

ADK Jim

[Don Schaeffer]

The interesting statement tome was where it said "it was still considered art and was therefore not commercial." That is if i just make prints of my street photos and sell than as art, I wouldn't need model releases?

[ADK_Jim]

Disclaimer: I am not a lawyer nor do I play one on TV but as I understand the law if you are making prints and selling them to individuals, that is art. If you are publishing them in books, newspapers,etc. you are a photojournalist. Artists don't need releases in most instances, the exception being trademarked or copyrighted subject matter. If example, if you are painting pictures or taking photos in which the subject is a branded product. Here in the US Harley Davidson motorcycles are popular subject matter for many buyers of art but to be legal the artist should have HD's permission to sell the works. If your subject is their product you are trading on their creation. (An aside: I don't think Jasper Johns or Andy Warhol got in trouble over their works. I don't know if they got releases or not). A photojournalist does not need a release for images that report or comment on subjects of public concern even if somewhat trivial.This is what makes it possible for paparazzi to harass celebrities whenever they appear in public. If you are selling rights to use the image for any commercial purpose you need a release. Again, as I understand it. If in doubt, check with your attorney.

ADK Jim

[matthew]

As an aside I have noticed while surfing photography sites that many if not most photos on the web have no identifying data in the EXIF and IPTC fields. Most have nothing other than the file name which is usually not even the original name but something generic given during downsizing for web use.

I was surprised to discover that mine also fall into this category, even though I add creator and copyright data when I import my photos into lightroom. It looks like it's time for me to add a discreet watermark giving my contact information.

The interesting statement tome was where it said "it was still considered art and was therefore not commercial." That is if i just make prints of my street photos and sell than as art, I wouldn't need model releases?

Copyright varies from place to place, and Canada is more restrictive than the USA which is what most articles are written for. The general rule as I understand it is that if the photo features a recognizable individual, then you need a release if you 'publish' the image. Publishing can include e-mail, and certainly includes web forums. (Exceptions to this are newsworthy individuals, or individuals that are incidental to the scene.) But it's something enforced in civil law, which means that someone would have to sue you for damages. And nothing stops you from taking any photo you like, with certain restrictions about military installations and courthouses, the limitations are only on the image's use.

[Don Schaeffer]

These forums have never constituted publication as far as I know. They are sites where you can only enter by password and registration. Publication means broad distribution in an organized e-zine or magazine or book.