I have been hunting on google.com for a few minutes, and I can not fnd much on this matter without buying a book
I am after sites that will explain to me the laws surrounding photography. For example, I have heard it is flat out against the law to take someones photograph wihtout permission, and you need a release form. Of course, there must be exceptions to the rule in large groups where no single person can be singled out.
Do the newspapers and tabloids get special laws?
What about all these sites that have “candids” of high school girls, there is no nudity etc, but these girls are getting pictures shot of them and posted on the internet and they do not know it. They are not upskirts which I have heard is now illeagal in some states. But still, seems a invasion of provacy to me.
Anyone have a good site where I can learn about this.
The general rule (under which news photog’s work):
If you, in a place accessible to the public, can see it, you can photograph it - where it gets tricky is when you use a particular person or recognizable thing for commercial gain (at one point, the new owners of Pebble Beach tried to exact a commission on every photo of the “lone cypress” - don’t know how far they got).
If you are thinking about using a studio shot - get a release! If you are shooting a specific, identifiable, person - even in public - get a release or a lawyer - if someone takes offense (placing a pic of an obese person next to a pic of a hippo will almost always get you a summons), you are in for a ride.
possible topics to search:
libel
invasion of privacy
defamation
intentional infliction of emotional distress
unlawful appropriation of copyright/trademark
holding up for public ridicule
(I’m sure a lawyer can come up with more)
Well, I am particularly after the goofs out there who sit out in front of high school car washes at a distance, with digital cameras, and shoot shots of the girls with their crappy little digital zoom etc.
If I had a daughter and saw her posted on the net, I would want to know if there was anything I could do about this.
Then you have the same scenario, just a girl walking up a set of stairs, so you can not even see the face, I assume, though this is a invasion of privacy, since you can not officially identify the person, that just gets a “ok”?
I hope someone has a link out there, photography is huge, and I cant imagine this being legal. There is a show on television tonight at 11 PST, perhpas they will have some answers. I am mainly a studio guy, but this stuff on the net is really pretty intrusive.
IA(still)NAL, but I think what you are looking for is “invasion of privacy”; in order for there to be an “invasion” there must be some sort of “privacy”. Perhaps a search on “expectation of privacy” would be of interest?
and, for a suit to prevail, you must show that you have reason to sue - unless you want to pay the bill for a “making the world a better place” action, you will need to show some connection between yourself (or child) and the action of the creep - if there is no face shown, that’s going to be tough.
You’ll have to research the law of the jurisdiction where you’re taking the photo or publishing it. For example, in Quebec, taking a photo of a person and publishing it without their permission can be a violation of the Quebec Charter of Human Rights: Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591. In this case, the individual was simply sitting outside when a photog snapped her picture and published it. The magazine ended up paying her damages for breach of her right to privacy.
I saw no reference to the nature of the photo, aside from a reference to the kid’s classmates teasing/taunts - are details available? Was this an upskirt shot? Was she drunk/dishevelled/puking at the time? What did the court find actionable?
Well, according to NBC, any photograph, even nude can be put up on the web, and the website operator at least can not be held accountable. Nor can the person taking the photograph. It was rather rather vague, but that was kind of the moral of the article. Futhermore, if you are in a public place, you are pretty much open to anything. Of course, nbc.com has no info on tonights show as best as I can tell.
IIRC, the nature of the photo was not at all an issue, it was the context of how it was used. The photograph was just a picture of the girl sitting on a curb. I think it was used in a magazine in conjunction with a significant feature article on the plight of homeless teens (or drugs use and teens, or something like that).
The girl had nothing to do with the article or the subject of the article – IIRC it was taken while she was on her way home from school or hanging out with friends. She was not living on the streets. She had no idea the picture had even been taken until it appeared with the feature article. I remember seeing the article and IIRC she was dressed in an upscale grunge/artsy style. (She looked pretty cool actually – more she looked like she went to the art college up the street from my office.)
The magazine used her image to represent the “quintessential street kid” caused big problems. And yes, it caused her quite a bit of distress – public ridicule etc. Imagine if someone took your picture on the way to work and then used your photograph to illustrate an article on “the sexual predators amoung us.”
The case set an uncomfortable legal precedent in Quebec for photography. The magazine that used the photograph for the article did display remarkably bad judgement.
The dangers of “photography” vs. “photojournalism.” If the photographer had included the shot in an exhibit (that contained no commentary), it’s not likely that anyone would have complained or would have much legal cause of action – even if the photographer made money from the print.
For example, Dorothea Lange’s photograph “Migrant Mother” is perhaps one of her most famous. Lange made a lot of money from it (prints sold from $7000 - $140,000!!). The woman in the photo – which is famous for its sad portrayal of a destitute family – made nothing. IIRC, there was a failed attempt at a lawsuit.
It’s totally different if you take an artistic shot and then use it as “news.”
In the case of the girl in Quebec, the magazine wrote a news article then used the unrelated photo of her in the context of “photojournalism”-- therefore, people who saw the accompanying photo thought that the girl in the photo was part of the story. The photo suggested that she was the topic of the story when she was not at all – that was defamatory. (If she had honestly truly been a homeless teen, the outcome would have been quite different because the condition of defamation wouldn’t have been there.)
The general guidelines are:
If you are on private property or are using the photo to promote a product – you should have the model sign a release or otherwise have some kind of work-for-hire agreement in place.
If it’s in public, you are generally okay, but if you use really bad judgment or questionable ethics, or you’re a supreme jerk, someone might come after you. Whether or not they succeed is another story.
I’m afraid I disagree with your explanation of the decision, Charmian - it wasn’t a defamation case, and it wasn’t a case of the photo plus the commentary that was at issue. It was a question of the privacy of the individual, which the magazine infringed by publishing the photo without her consent.
Here’s the complete statement of facts from the Supreme Court’s decision:
(There was some additional evidence about teasing that she got from her friends (see para. 70 of the decision), but that went to the issue of damages, not to the question of the liability of the magazine/photographer.)
Under Quebec’s human rights law, both the right to privacy and the right to freedom of expression are protected values. The photographer’s right to freedom of expression didn’t take priority over the subject’s right to privacy - if the photographer wanted to publish the photo, he needed her consent. Just being in public is not considered consent to having a picture of you published:
Note that this was decided under Quebec’s provincial law; there may be different results under the laws of the other provinces.
Quebec finds a right to privacy in sitting in a public place?!
That’s nuts - If I wish to take a shot of the beach on a hot day, I must obtain premission of everyone who might be recognizable before I can publish it? Like people have nothiing better to do than swap release forms all day, because somebody may someday publish some snapshot? Is there an exception for school yearbooks, or does everyone in the stadium have to sign off on every picture taken during the game?
I hope that this is limited to legal systems derived from the French code, and does not spread to those based on English Common Law.
The Supreme Court addressed those types of concerns. Being part of a large, anonymous group, where the individual is essentially “part of the scenery” doesn’t trigger the protection of the Quebec Charter:
As well, you have to remember that it wasn’t the taking of the photo that infringed the right to privacy. She was in public, after all. It was the publication of the photo, without her consent or knowledge, that triggered the right.
With respect to your last point, although the case was decided under the Quebec Charter, it is a decision of the Supreme Court of Canada, so if any other province enacts privacy legislation this decision would be highly relevant to cases under those other laws.
Case arose in SF, do not remember which jurisdiction.
A man attended the annual “Exotic/Erotic Ball” wearing next-to-nothing. Note: the only difference between being inside and being outside this event is the payment of admission - NOT a private gathering. Penthouse published a photo in which he was quite recognizable, causing his work buddies to torment him. He sued, and lost, under just the issue here - expectation of privacy - the court ruled that he was, in effect, in a public place and, therefore, fair game.
I fail to see any justification for the Quebec rule - I suspect such a (state) law in the US would be found unconstitutional. At least I’d hope so.
The child had no right to privacy, but did have a right not to be portrayed in a (false) negative light. IMO.
With respect to your California example, I think the courts in Quebec would likely reach the same conclusion, based on the Supreme Court’s decision. In explaining the limits of the right to privacy, the Court stated:
I would think that if an individual attended a highly public event, such as the example you gave, scantily dressed, they would come under the “limelight” exception.
With respect to your second point, that you hope such a law would be struck down in the U.S., I assume you’re thinking of the First Amendment. But there are other constitutional provisions which may come into play, notably the 9th Amendment. Some judges of the Supreme Court have held that the 9th Amendment, which recognizes unenumerated rights, may be the foundation for the judicial recognition of the right to privacy. (See in particular the concurring opinion of Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479 (1965).)
If the right to privacy is an unenumerated right protected by the 9th Amendment, and a legislature decides to provide legal protection for that right by enacting a privacy statute, I don’t think it’s axiomatic that the courts would strike the statute for conflict with the 1st Amendment. They could just as well conclude that the Legislature was trying to reconcile competing rights between citizens. After all, similar restrictions on publication flow from copyright law - if you own the copyright in a photo, I can’t publish it without your consent, 1st Amendment notwithstanding.
Is the issue here one of the subject of the photo v. an element of the photo? Seems to be.
Given that the exception seems to key on it:
when an individual’s own action, albeit unwitting, accidentally places him or her in the photograph in an incidental manner…
Extrapolating from the given case of ? v. Hustler, what if the photog deliberately photographed that single near-nude man? (I have never seen the photo in Q, but suspect that this was not a “cast-of-thousands” wide-angle shot).
Suppose that, for the sake of discussion, that the child in the Quebec case and the man in the SF case were equally the obvious, undeniable, subject of the picture (for instance, say they are not only the only person in the shot, but their image occuoies 70% of the frame, and they are the only objects in focus). Therfore, the “subject” v. “incidental” consideration is removed.
Given that, would the ruling be the same, or whould his manner of dress trump his right to privacy? This is the only way I could see that both findings could be reconciled - she was minding her own business, doing nothing to draw attention to herself, whereas he was being an exhibitionist.
And, I still shudder at the thought that somebody could sue me because I thought the expression on their face was worth capturing and publishing - kids playing in the rain, for example, or an old man playing chess in the park - now I’ve got to carry release forms? So much for use of a telephoto lens to be unobtrusive - now I’ve got to interrupt them (or parent/guardian) to ask for a signature? Might as well use a portrait lens, flash, and reflectors while I’m at it.
