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التصوير الفوتوغرافي الحديث
WHAT about RELEASES ?
George Chernoff and Hershel B. Sarbin , the attorney - authors of " Photography and the Law , " present guidelines and advice about the very tricky subject of invasion of privacy .
Do YOU PLAN to sell or exhibit your pictures ? If so , this article about model releases is for you . While it cannot guarantee to keep you out of jail or out of court , it will attempt to tell you when and under what circumstances you will need a model release and , when you are reasonably safe without one .
Whenever you sell or exhibit a picture of a person you run the risk of being sued and you should know that by far the greatest number of lawsuits brought against photographers today re sult from the invasion of the right of privacy , often described as the right of the individual to be left alone or , the right to be free from unde served publicity . Such suits generally are the out come of photographer's failure to obtain a release from the person or persons photographed .
Essentially , the law of privacy prohibits the use of a photograph of any living person for advertis ing or trade purposes without that person's consent . A model release embodies that consent . In some states the violation of this law is a criminal offense and virtually everywhere the wrongdoer can be sued for damages and the use of the offending photograph enjoined .
Getting release not always easy
If you could get a release from every living person who turns up in your pictures , you would obviously have no problems with right - of - privacy suits . Getting a release , however , is not always easy and is a chore most people prefer to avoid .
For this reason it is important to know when a release is required . This calls for some additional knowledge about the right of privacy .
The mere taking of a person's picture is not of itself a violation or invasion of the right of privacy . It is the use to which the picture is put that counts . In the words of the New York statute , the prohibition covers any use for " advertising or trade purposes . "
Clearly , the display of a photograph in con nection with the endorsement of a product is such a use . For example , where a woman paid a pho tographer to make a portrait of her and the pho tographer , without the subject's consent , sold acopy of the portrait to a publisher who used it to promote the sale of a book on " Hair Culture , " a New York Court held the use to be for adver tising purposes .
At the other extreme , the publication of a photograph in a newspaper in connection with an article of current news of immediate public inter est is not prohibited . This is known as an editor ial use . The unauthorized use of a photograph in connection with an article of fiction , however , is an invasion of privacy .
Rule is not as rigid with person in limelight
Where the subject of the photograph is a per son in the public limelight , the rule is not as rigid . It has even been said by one court , for instance ,
RELEASES are not needed where persons are not recognizable . Photo courtesy of Zeiss Ikon AG .
that an actor , musician , or inventor , who asks for and desires public recognition , " may be said to have surrendered this right to the public . Where anyone obtains a picture or photograph of such a person , and there is no breach of contract or con fidence in the method in which it was obtained , he has the right to reproduce it , whether in a newspaper , magazine or book . "
However , such a person's picture may not be used for advertising or trade purposes without his consent and in this respect he is entitled to the same protection as his less famous brethren . The highest court in New York held that one who a public figure may be the proper subject of news or informative presentation , but such privilege does not extend to commercialization of his per sonality through forms of treatment distinct from dissemination of news or information .
Thus , G. H. Corliss , a famous inventor , could not prevent the publication of his portrait in con nection with a biography of his life .
But , note that where a picture of an actress was placed in a locket and sold in a five - and - ten cent store , the court held that her right of privacy had been invaded . This was a commercial use of her photograph .
Another area of the law of privacy that has come in for considerable attention lately is the publi cation of articles ( and illustrative pictures ) , which are neither strictly news items nor strictly fictional in character , but which satisfy an ever - present edu cational need .
Such articles include among others , travel stories , stories of distant places , tales of historic personages and events , the reproduction of items
of past news , and surveys of social conditions . The New York courts , at least , have held that such cases do not come under the privacy statute .
Not all legal authorities agree with this con clusion , however . Some believe that immunity from liability in this area should not be extended to cases where the subject is not a public character .
Picture caption must be accurate
Some years ago , the Saturday Evening Post pub lished a story about traffic accidents and in con nection with it used a picture of a particular acci dent , in which a little girl had been involved , as a " frightful " example of pedestrian carelessness . The girl sued for invasion of the right of privacy and the Court ( the Third Circuit court of the United States ) allowed recovery of damages .
The evil here was that the use of the picture as a " frightful " example caused embarrassment and humiliation and was a distortion of the facts . Its publication was " offensive to a person or ordinary sensibilities . "
The same result was reached where a defend ant published an article on love patterns and used a plaintiff's picture as an example of the " wrong " or " bad " kind of love .
Anyone who wants to publish a picture of a nude should have a release from the model who posed for it and even with a release such publica ttion can be dangerous .
Utah is different
The right of privacy belongs only to living persons ( except in Utah by statute ) . Animals and inanimate things do not come under the right of privacy laws . However , the photographer's right to use the picture of an animal or private property ( such as a house ) , may be challenged where the use of a picture of the animal or property in an advertisement is without the owner's consent , on the ground that it constitutes interference with a property right .
We know of only case where that issue was raised . Unfortunately , the case was settled before trial so the case does not become a legal precedent .
In the case in question , a famous photographer was sued for allowing the picture of an unusual tree which he had photographed to be used as cal endar art and for other illustrative purposes . The theory of the complaint was that the owner of the tree had a property right which was violated by the commercial use of a picture of his property . Despite the fact that the plaintiff's theory in this case lacks the support of judicial precedent , the photographer who wants to use pictures of private property for advertising purposes would be wise to obtain a release . The same applies to photog raphers who wish to use pictures of animals for advertising purposes .
NEWS photos used to report current events do not need releases . Photo from Polaroid Corp.
Exhibition of work okay
The right of the photographer to exhibit speci mens of his work in and about his own studio has been clearly established by statute in New York , even though the effect is to advertise the photographer's work . But , if the person whose picture is displayed objects , and he communicates his objection to the photographer in writing , then the display of the picture is no longer privileged .
The question has often been raised whether the display of photographs of persons in exhibi tions or salons might constitute an invasion of privacy . Although there is a lack of cases on the subject it would appear that if the exhibition is of a commercial nature , and its purpose is to ad vertise or enhance the good will of a particular manufacturer , it might be deemed to be for trade or advertising purposes . On the other hand , an ex hibition of photographs in the Museum of Mod ern Art , not sponsored by any commercial concern , would not be considered a trade or commercial purpose . Exhibitions at camera clubs , likewise , unless of a commercial nature , are not likely to incur any privacy law risks .
For you , the photographer , all this adds up to one thing . The best course is to get a model re whenever possible . The law does not require
PUBLIC figures get less protection under pri vacy law but their pictures may not be used in advertisements or endorsements without release .
RELEASE would be required of girl and parent or guardian . If photo is to be used in an ad , a release should be secured from the owner of the animal , too , to be sure . Photo by Ortrud Brauer .
you to pay for the release . It is the consent for the specific use intended that counts .
Nevertheless , photographers are often required to pay for releases in one way or another in order to obtain the coveted signature . Professional models who are paid for their services sign re leases as a matter of course . Generally , for ama teurs , a reasonable amount of tact and the proffer of finished prints brings success .
If you will follow a few simple rules in con nection with model releases , you will stay out of trouble and out of court :
1. Although written consent is not necessary in all states , it is sound practice to get the release in writing . Some states require written consent , and even where it is not required , you do not want to be faced with the difficult task of proving oral consent in court . Oral consent , if it can be proved , may soften the penalty in states where written permission is a requisite .
2 .The consent of a minor to use a picture is not adequate . The release must be signed by the parent or guardian .
3 . The use of a picture must not go beyound the limits set forth in the release . In other words , if the release states that the photographer may use the picture in a brochure he is preparing for circulation among customers , any other use would be unauthorized . For that reason it is best to make the release as broad as possible . Samples of re leases accompany this article .
4 . The release must be voluntary . If secured by fraud the consent is not effective .
5 . Of course , the problem of releases does not arise with respect to persons who are unrecog nizable in the picture.
Finally , it should be remembered that what we have said here with respect to the right of privacy is by no means intended as an exhaustive analysis of the subject . We have only scratched the surface , setting forth a few basic guides for the photog rapher in this area of the law .
Interpretations of the law may vary from state to state , and as conditions change so will the law . What is lawful today may not be lawful tomorrow .
For this reason , if you are ever faced with a specific problem involving the right of privacy , we urge you to consult an attorney in your own state .
التصوير الفوتوغرافي الحديث
WHAT about RELEASES ?
George Chernoff and Hershel B. Sarbin , the attorney - authors of " Photography and the Law , " present guidelines and advice about the very tricky subject of invasion of privacy .
Do YOU PLAN to sell or exhibit your pictures ? If so , this article about model releases is for you . While it cannot guarantee to keep you out of jail or out of court , it will attempt to tell you when and under what circumstances you will need a model release and , when you are reasonably safe without one .
Whenever you sell or exhibit a picture of a person you run the risk of being sued and you should know that by far the greatest number of lawsuits brought against photographers today re sult from the invasion of the right of privacy , often described as the right of the individual to be left alone or , the right to be free from unde served publicity . Such suits generally are the out come of photographer's failure to obtain a release from the person or persons photographed .
Essentially , the law of privacy prohibits the use of a photograph of any living person for advertis ing or trade purposes without that person's consent . A model release embodies that consent . In some states the violation of this law is a criminal offense and virtually everywhere the wrongdoer can be sued for damages and the use of the offending photograph enjoined .
Getting release not always easy
If you could get a release from every living person who turns up in your pictures , you would obviously have no problems with right - of - privacy suits . Getting a release , however , is not always easy and is a chore most people prefer to avoid .
For this reason it is important to know when a release is required . This calls for some additional knowledge about the right of privacy .
The mere taking of a person's picture is not of itself a violation or invasion of the right of privacy . It is the use to which the picture is put that counts . In the words of the New York statute , the prohibition covers any use for " advertising or trade purposes . "
Clearly , the display of a photograph in con nection with the endorsement of a product is such a use . For example , where a woman paid a pho tographer to make a portrait of her and the pho tographer , without the subject's consent , sold acopy of the portrait to a publisher who used it to promote the sale of a book on " Hair Culture , " a New York Court held the use to be for adver tising purposes .
At the other extreme , the publication of a photograph in a newspaper in connection with an article of current news of immediate public inter est is not prohibited . This is known as an editor ial use . The unauthorized use of a photograph in connection with an article of fiction , however , is an invasion of privacy .
Rule is not as rigid with person in limelight
Where the subject of the photograph is a per son in the public limelight , the rule is not as rigid . It has even been said by one court , for instance ,
RELEASES are not needed where persons are not recognizable . Photo courtesy of Zeiss Ikon AG .
that an actor , musician , or inventor , who asks for and desires public recognition , " may be said to have surrendered this right to the public . Where anyone obtains a picture or photograph of such a person , and there is no breach of contract or con fidence in the method in which it was obtained , he has the right to reproduce it , whether in a newspaper , magazine or book . "
However , such a person's picture may not be used for advertising or trade purposes without his consent and in this respect he is entitled to the same protection as his less famous brethren . The highest court in New York held that one who a public figure may be the proper subject of news or informative presentation , but such privilege does not extend to commercialization of his per sonality through forms of treatment distinct from dissemination of news or information .
Thus , G. H. Corliss , a famous inventor , could not prevent the publication of his portrait in con nection with a biography of his life .
But , note that where a picture of an actress was placed in a locket and sold in a five - and - ten cent store , the court held that her right of privacy had been invaded . This was a commercial use of her photograph .
Another area of the law of privacy that has come in for considerable attention lately is the publi cation of articles ( and illustrative pictures ) , which are neither strictly news items nor strictly fictional in character , but which satisfy an ever - present edu cational need .
Such articles include among others , travel stories , stories of distant places , tales of historic personages and events , the reproduction of items
of past news , and surveys of social conditions . The New York courts , at least , have held that such cases do not come under the privacy statute .
Not all legal authorities agree with this con clusion , however . Some believe that immunity from liability in this area should not be extended to cases where the subject is not a public character .
Picture caption must be accurate
Some years ago , the Saturday Evening Post pub lished a story about traffic accidents and in con nection with it used a picture of a particular acci dent , in which a little girl had been involved , as a " frightful " example of pedestrian carelessness . The girl sued for invasion of the right of privacy and the Court ( the Third Circuit court of the United States ) allowed recovery of damages .
The evil here was that the use of the picture as a " frightful " example caused embarrassment and humiliation and was a distortion of the facts . Its publication was " offensive to a person or ordinary sensibilities . "
The same result was reached where a defend ant published an article on love patterns and used a plaintiff's picture as an example of the " wrong " or " bad " kind of love .
Anyone who wants to publish a picture of a nude should have a release from the model who posed for it and even with a release such publica ttion can be dangerous .
Utah is different
The right of privacy belongs only to living persons ( except in Utah by statute ) . Animals and inanimate things do not come under the right of privacy laws . However , the photographer's right to use the picture of an animal or private property ( such as a house ) , may be challenged where the use of a picture of the animal or property in an advertisement is without the owner's consent , on the ground that it constitutes interference with a property right .
We know of only case where that issue was raised . Unfortunately , the case was settled before trial so the case does not become a legal precedent .
In the case in question , a famous photographer was sued for allowing the picture of an unusual tree which he had photographed to be used as cal endar art and for other illustrative purposes . The theory of the complaint was that the owner of the tree had a property right which was violated by the commercial use of a picture of his property . Despite the fact that the plaintiff's theory in this case lacks the support of judicial precedent , the photographer who wants to use pictures of private property for advertising purposes would be wise to obtain a release . The same applies to photog raphers who wish to use pictures of animals for advertising purposes .
NEWS photos used to report current events do not need releases . Photo from Polaroid Corp.
Exhibition of work okay
The right of the photographer to exhibit speci mens of his work in and about his own studio has been clearly established by statute in New York , even though the effect is to advertise the photographer's work . But , if the person whose picture is displayed objects , and he communicates his objection to the photographer in writing , then the display of the picture is no longer privileged .
The question has often been raised whether the display of photographs of persons in exhibi tions or salons might constitute an invasion of privacy . Although there is a lack of cases on the subject it would appear that if the exhibition is of a commercial nature , and its purpose is to ad vertise or enhance the good will of a particular manufacturer , it might be deemed to be for trade or advertising purposes . On the other hand , an ex hibition of photographs in the Museum of Mod ern Art , not sponsored by any commercial concern , would not be considered a trade or commercial purpose . Exhibitions at camera clubs , likewise , unless of a commercial nature , are not likely to incur any privacy law risks .
For you , the photographer , all this adds up to one thing . The best course is to get a model re whenever possible . The law does not require
PUBLIC figures get less protection under pri vacy law but their pictures may not be used in advertisements or endorsements without release .
RELEASE would be required of girl and parent or guardian . If photo is to be used in an ad , a release should be secured from the owner of the animal , too , to be sure . Photo by Ortrud Brauer .
you to pay for the release . It is the consent for the specific use intended that counts .
Nevertheless , photographers are often required to pay for releases in one way or another in order to obtain the coveted signature . Professional models who are paid for their services sign re leases as a matter of course . Generally , for ama teurs , a reasonable amount of tact and the proffer of finished prints brings success .
If you will follow a few simple rules in con nection with model releases , you will stay out of trouble and out of court :
1. Although written consent is not necessary in all states , it is sound practice to get the release in writing . Some states require written consent , and even where it is not required , you do not want to be faced with the difficult task of proving oral consent in court . Oral consent , if it can be proved , may soften the penalty in states where written permission is a requisite .
2 .The consent of a minor to use a picture is not adequate . The release must be signed by the parent or guardian .
3 . The use of a picture must not go beyound the limits set forth in the release . In other words , if the release states that the photographer may use the picture in a brochure he is preparing for circulation among customers , any other use would be unauthorized . For that reason it is best to make the release as broad as possible . Samples of re leases accompany this article .
4 . The release must be voluntary . If secured by fraud the consent is not effective .
5 . Of course , the problem of releases does not arise with respect to persons who are unrecog nizable in the picture.
Finally , it should be remembered that what we have said here with respect to the right of privacy is by no means intended as an exhaustive analysis of the subject . We have only scratched the surface , setting forth a few basic guides for the photog rapher in this area of the law .
Interpretations of the law may vary from state to state , and as conditions change so will the law . What is lawful today may not be lawful tomorrow .
For this reason , if you are ever faced with a specific problem involving the right of privacy , we urge you to consult an attorney in your own state .
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