A Question of Legality [Photography]

[Dean Sensui]

In addition to getting advice from a good attorney, get yourself some errors & omissions insurance.

If you do get sued, this might help protect you from losing everything.

And you might also consider creating a production company that's a limited liability corporation. Again, to protect your personal assets.

Again, a good attorney can advise you about all this.

[Jack Walker]

Here are three links to begin your research. Research is needed to start learning what questions to ask the lawyer.

Model release - Wikipedia, the free encyclopedia

Amazon.com: A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things: Dan Heller: Books

Photo Attorney: When You Definitely Need A Model Release

(Copyright, releases, etc. etc. etc. is a bit like refereeing in the NBA. A lot of intersecting factors determine the end result.)

[Robert Rogoz]

It's pretty clear cut case. A private person has the right to privacy. So unless you have the model release, clearly stating your output use (video doc, stock and so) you can't use it. Accidental exposure in public places is different case (like shooting riot situation or during public gathering).
A public person (politicians, known actors or musicians) give up the right to privacy. You can chase your local politician all you want, and they can't do a thing about it.

[Paul Tauger]

Originally Posted by Robert Rogoz

It's pretty clear cut case. A private person has the right to privacy.

Well, no -- not if they're in or visible from a public place. The test is whether the individual has an expectation of privacy.

There is never anything such as a "clear cut case," particularly on the minimal information provided in posts to forums like these.

So unless you have the model release, clearly stating your output use (video doc, stock and so) you can't use it. Accidental exposure in public places is different case (like shooting riot situation or during public gathering).
A public person (politicians, known actors or musicians) give up the right to privacy. You can chase your local politician all you want, and they can't do a thing about it.

Not quite.

[Robert Rogoz]

Getty Images will not accept any photos without a model release, wherever it was shot (public or not). Also you can't shoot into someone's window off the sidewalk. It is a clear cut case- you simply can't use any footage or stills of private individuals without their consent. Vide "Deliver Us from Evil" documentary, where there were kids filmed in the background- without parental consent. Ergo it is well established scenario.

[Chris Swanberg]

Well, just because someone refuses to accept a film without model release does not establish the legality of the situation, nor make it a "clear cut case".

And, since Paul is a well respected attorney in this area of the law, I think others are well advised to listen to his advice here. Oh, here was a recent news release regarding Paul:

"Before attending Loyola Law School of Los Angeles, Tauger received
a bachelor's degree from the University of Massachusetts and a
master's degree from the University of North Carolina. Prior to
joining Rutter Hobbs & Davidoff, Tauger was an attorney with Bryan
Cave LLP specializing in intellectual property and licensing with a
client base of computer game developers, software developers and
distributors, and product manufacturers. Named as one of the "Top Bay
Area Lawyers" for intellectual property litigation by Bay Area Lawyer
Magazine, Tauger is frequently invited to speak at computer gaming
industry events and share his legal expertise on issues of law facing
game developers such as intellectual property and government
regulation."

We're lucky to have someone with his level of expertise on the Board willing to pitch in on answering some of these questions.

[Dean Sensui]

Originally Posted by Robert Rogoz

... you can't shoot into someone's window off the sidewalk. It is a clear cut case- you simply can't use any footage or stills of private individuals without their consent...

That is debatable. Good example is the Columbine massacre. Lots of kids under the age of majority were videotaped running for their lives, yet no releases were obtained and the footage was used extensively. If I photographed a firefighter through a window rescuing a baby would I need to get a release to publish the photo in a major daily newspaper?

Aside from privacy issues, there is also room in the debate for images of "legitimate public interest".

While Getty might not accept a submission without adequate model releases, The Associated Press will as would some other major news organizations. It depends upon the nature of the image or footage and how it's used. There are many instances where usage is far from clear cut.

[Paul Tauger]

Originally Posted by Robert Rogoz

Getty Images will not accept any photos without a model release, wherever it was shot (public or not). Also you can't shoot into someone's window off the sidewalk. It is a clear cut case- you simply can't use any footage or stills of private individuals without their consent. Vide "Deliver Us from Evil" documentary, where there were kids filmed in the background- without parental consent. Ergo it is well established scenario.

I'm not going to argue about this with you. The law is as I stated.

[Robert Rogoz]

Paul and Dean, I see your arguments. However my question would be: news vs documentary. Wouldn't a documentary be considered a commercial use, while news is non-commercial use?

[Paul Tauger]

Originally Posted by Robert Rogoz

Paul and Dean, I see your arguments. However my question would be: news vs documentary. Wouldn't a documentary be considered a commercial use, while news is non-commercial use?

Not quite. News is a commercial use, but subject to a 1st Amendment-based exception.