Lots of times they do use extras - but not always - baseball and similar tickets often include a release to use your image. Something like this may have been used at the restaurant.
I actually was going to bring up the fact that at many events there is a release that allows them to use your image, so I guess the alderman could have just missed it.
Can also be different in Canada. The Supreme Court has held that a photographer who took a picture of a teenage girl sitting on her front stoop and published it, had invaded her privacy and owed damages.
Again, depends on the local law. Canadian copyright law provides that it’s not a breach of copryright law to take a picture of a sculpture and then publish it.
Are you talking about the freedom of panorama exception to the Copyright Act 1985? This applies only to sculptures that are permanently installed in public view, not all sculptures in general.
yes, that’s what I meant. sorry for lack of precision
There is a difference, but as @bdgr notes, the distinction in the United States is a bit more complicated than that.
As this suggests, the issue is not whether or not the photographer makes a profit from selling the photo; the issue is what particular purpose the photo is used for.
A photographer taking a picture of people gathering in the park on a sunny day could sell it to a newspaper seeking to illustrate a story about the great weather in the city over the weekend, but could not sell it to a pharmaceutical company seeking to use it for advertising sunscreen.
Or rather, the photographer could sell it to the pharmaceutical company, but without a model release they’re not going to be able to use it in an advertisement.
There was actually an interesting case about this sort of thing a few years back. The recording artist Bruno Mars and his record company posted, on his official Instagram page, a picture of him as a kid. The picture had been taken, back in 1989, by a professional photographer.
Despite the fact that the photo was of Mars himself, the photographer sued Mars and the record company for copyright infringement. The suit ended up settling out of court, mainly because Mars and the record company didn’t have a leg to stand on.
Everyone has sort of hit on it. If a photographer takes your picture in a place that you have no reasonable expectation of privacy, then it is his whether he has your permission or not.
Now, when he publishes it for commercial purposes, he needs your permission. He does not need it if it is for art or “news.”
My question is regarding the commercial v. news angle. Obviously if a photographer sells his clearly newsworthy photo to a newspaper, that is both news and commercial.
But what if he posts it on his blog (with ads generated) talking about how this person is the ugliest he’s ever seen? Is that newsworthy? Just like the photo in the OP. How is that newsworthy? Shouldn’t she be suing the photographer for using her likeness for a commercial purpose?
No, because that’s not how the distinction works. The question is not whether it’s newsworthy, and nor is the question about whether the image and commentary are posted on a profit-generating website; the question is whether the use of the person’s likeness is, in itself, commercial or informational.
In this context, the commercial use of an image, in the United States, generally means that the person’s image (or name) is being used in a way that implicitly or explicitly connects that person with the selling or endorsing of a particular product or service or organization or idea. As the Stanford University Copyright and Fair Use website says, this sort of usage is often referred to in the United States as “right of publicity,” and under this right, a person “can sue if their name or image is used to imply endorsement of a product or service.”
So if you want to post a picture of a person on your blog in order to make some observations about the person’s attractiveness, or lack thereof, that’s informational use. And it doesn’t matter if your blog has ads, or if your comments meet some nebulous standard of newsworthiness, as long as there is no suggestion that the person in question is supporting or selling or endorsing any particular product or service or organization.
If, on the other hand, you post that same picture on a website where you’re selling beauty products, and use the image to suggest that purchasing your products will help people avoid looking like this ugly person, then you’re much more likely to leave yourself open to a “right of publicity” lawsuit.
As with a lot of other areas of intellectual property and copyright law, the lines are not always clear, but the Stanford page linked above provides examples of some cases that have been rules Informational, and some that have been ruled commercial. Here are two contrasting rulings that give some sense of how the courts view these issues:
Thank you. Very helpful.
So why is it that in some “live” on the spot reality shows (like COPS, for example) sometimes peoples’ faces in the background are blurred out? Or the description above about the Alderman and his mistress in a restaurant?
In the story about the Alderman, it said he dropped the case when he was assured there wasn’t any footage of him and his mistress, not that footage of them was removed from the movie. Now, that may or may not be true - but it’s not uncommon for people/companies to refrain from doing something perfectly legal ( show the Alderman in the movie or show someone’s face on a reality show without a release) just because doing it isn’t worth the potential hassle. I mean, let’s say there was footage of the Alderman in the movie. Chances are that having him in the background would not have been sufficiently important to be worth fighting even a baseless lawsuit and the same goes for COPS.
Well, a couple of things in the reality tv field.
If the police burst into someones house with a camera crew following, people can reasonably say they had an expectation of privacy in their living room. Additionally, when the cops people contract with the police force, some cities have required that faces be blurred under various circumstances.
Additionally, some publications have their own rules in addition to what is legally required. For instance…I was shooting a public event and was taking pictures of people enjoying the event. I took a picture of a woman with her child and she politely asked me to delete the picture. I did because
A: It wasn’t neccesary to the story
B: The paper had a policy of not publishing a photo of someone if they objected to it (if they weren’t the subect of the story obviously).
C: She asked nicely.
Had she been rude about it – I would have declined to delete it, but wouldn’t have used it. If I took a picture of a politician taking a bribe or something – it’s getting published.
Additionally, I covered a rape trial where we obviously wouldn’t take pictures of the victim (or use their name). I covered a musician who was wearing a short skirt on stage – on a piano bench – and one of the photos wound up with an up-skirt shot that I didn’t notice until I processed the photo. I deleted that one. There’s ethics and there’s legality.
But note that “freedom of panorama” isn’t a legal term. That may be what people call it, informally, but it’s not in the Act:
I mentioned picture window because I recall reading about a case (in the USA) where a couple were charged with public indecency for going at it in full view of the people out in public - but the charges were dismissed by the judge who said they could do that in the privacy of their own home.
If you take a picture or write something or sculpt something, or draw or paint something, you own the copyright. Whether you can use it commercially, or even non-commercially, depends on a lot of things. There’s a whole body of law - If your picture seems to be deliberately copying something else under copyright, then you are not creating, you are copying. But that depends how unique the item is you copied. And parody is a valid exception. Case law is full of these- i.e. the couple in “American Gothic” are the artist’s dentist and his 17yo sister. By the 1960’s, parodies of the painting were common. But I recall one news story where Nan Wood sued because it depicted her with bare breasts (60’s humor.) There’s apoint where the copy goes too far. Fox tried suing the producers of Battlestar Galaxative - sorry, Galactica - claiming it was a close copy, but that was a long shot and failed because the stories and actual depictions were sufficiently different.
A photo you took does not give you claim on any future photos of the same thing. Someone can’t sue you for publishing a skyline of Manhattan from the west side of the Hudson unless the original they sue about has something so distinctive that you’ve copied that makes it sufficiently different from everyone else’s skyline photo that someone looking at the two would see the distinctive and copied element.
For a fun rabbit hole, see the dispute over Harrison’s “My Sweet Lord” and the 50’s classic “He’s So fine”. From one view they sound eerily similar, for another, they are similar only because that’s the natural progression of notes in that arrangement.
Even this:
The photo may have been taken without her permission, but evidently that does not apply, as she liked it enough to use it. That being so, she has to negotiate copyright with the photographer. That is the rule just about anywhere.
A comprehensive explanation of exactly what is covered by the GDPR by design, and how it works in evolving practice as established by emerging caselaw, is a pretty big subject and would probably constitute a hijack of the thread. So I’ll just make a couple of brief comments here, and if you’re interested in further discussion, please start a new thread and I’ll participate.
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By “narrow” exception, I mean in a legalistic sense, where there are a few specific areas of activity that are named in the regulation as eligible for particular exemption (under Article 85). The scope of activities encompassed by the journalistic exception is indeed potentially fairly wide, including independent citizen-investigators posting exposé videos to YouTube (as established by recent caselaw).
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In general the heading of “public interest” serves as a catch-all justification for personal-data processing for journalistic purposes. This is a standing concept in European law, established by preceding legislation and the outcome of litigation. A politician cannot object to coverage of his alleged corruption, even after exoneration, because of the public interest in good governance. But a local aristocrat can object to the publication of photographs of her dalliance with her riding-club instructor stolen by telephoto lens from outside the equestrian facility’s grounds because gossipy curiosity does not rise to the level of genuine public interest sufficient to override her right to privacy (and good riddance).
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Under the EU’s system, laws at the European level generally establish concepts and principles, and then each member country is expected to transcribe these principles into their own national law in the form of governing legislation. This allows for some cultural variation (Spain is more tolerant of invasive paparazzi journalism than, say, Germany), but unfortunately it also provides cover for abuse (see this case in Romania, where the data protection agency has been leaning hard on a group critical of established powers).
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While the GDPR establishes stricter standards for capturing and processing personal data, journalistic activities have not been brought to a standstill by any means. News continues to be gathered and reported. Even where the excesses of an overly-aggressive news organization are reined in, coverage still continues. Example: the BBC was fined for hovering helicopters over the house of a minor celebrity and aiming cameras in his windows, simply on the report that police were visiting his residence related to an open investigation, in what was held to be pure sensationalism out of scale with the actual matters at issue; however, the BBC was not barred from covering the event, and indeed continues to report on the aftermath of its own offense, including both the name of the celebrity and the original reasons for their breathless prurience.
In short, if a journalist or a press organization has reason for its activities and for the material it collects and processes, it’s generally free to do so, under the headings of public interest and freedom of expression, and the continued work of European reporters attests to this. But personal data can’t be gathered or used outside these boundaries.
The European Data Journalism Network published a handbook on this topic. If you’re interested, you’ll want to refer specifically to Chapter 4.
I hope this additional background and explanation is informative and useful.
nevermind
From a legal standpoint, in the area of copyright, this is simply flat-out incorrect, at least in the United States. Copyright applies to specific works that have been “fixed in a tangible medium of expression”; you can’t claim or obtain copyright over an idea or a concept.
Say you take a photograph or make a drawing or painting of a particular scene. And then I do everything I can to work out exactly where you sat for that scene, and what time of day it was, etc., etc. And I then do everything within my power to photograph or draw or paint the scene so that it looks as close as possible to your creation. I have not violated your copyright.
First, anyone can sue you over just about anything in the United States. The question is whether the courts will take the lawsuit seriously.
Second, the above-quoted paragraph should have stopped after the word “Hudson.” Even if you took a picture of the skyline of Manhattan from the west side of the Hudson, and it had a very unusual element in it that appears in almost no other similar photos, it would still not be a violation of copyright for me to take an almost identical photo with the same unusual element. The only way I violate your copyright is if I actually copy the photograph that you took. If I take a photo of the scene my own, you have no copyright claim over it, even if it look virtually idcentical
But this was not a copyright case. Nan Wood sued for defamation, not for copyright infringement. She won a small judgment in the case against Johnny Carson and .Playboy, but about 10 years later when she tried suing Hustler magazine for a similar thing, her case was tossed out. I think the only reason she won a small settlement in the first suit was that the vestiges of American prudery caused the topless parody to shock enough people that it swayed the court. There’s no way that she would win a lawsuit like that now.
There’s also actually a separate dispute over whether American Gothic is still under copyright. The Art Institute of Chicago argues that it is not:
Others argue that Nan Wood registered a reproduction in March 1952, and that this was renewed in 1980, meaning that the painting is still protected. If Wood’s claim is valid, then the authors of a book about the painting argue that American Gothic will enter the public domain in 1925.
One of the problems with copyright law in cases like this is that the only way to test the validity of Nan Wood and the artist’s estate’s claim that the painting is still protected by copyright is to use the image and then fight the case when they take you to court. The court would then have to dig into the history of the painting and the various claims to copyright, registration, renewal, etc.
This means that, whatever the actual status of a work, de facto victory in copyright cases often tends to go to the party with the deepest pockets, and the willingness to pursue a case in the courts. Would you use a picture of American Gothic and leave yourself open to a lawsuit, knowing that even if you win you’ll probably have to fork over at least five figures to your lawyers?
Thanks for the very detailed explanation.
But then there’s the lawsuit over the “HOPE” Obama painting. A stylized, posterized false colour painting copying a photographer’s picture, used without his permission. Similarly, the Dr Seuss estate has sued over alleged parodies using the “style” of his characters, not even copying an exact character or pose. (Note too characters are copyright. You can’t publish your own Harry Potter story, even if the story is some action Rowling never wrote.)
As I recall, one of the issues of copyright also is “transformational”. What makes a work original, and what makes it sufficiently distinctive from all other versions that making a similar copy is violating copyright. Yes, I can reproduce the landscape or skyline picture that others have already also produced. But if I change it substantially - let’s say, I have a distinctive brush style or something, much as Van Gogh had a distinctive style (His colour and brush stroke style was very recognizable) - then if you copy that style too exactly, you are in fact copying my original work. If all I do is paint a photorealistic picture, then it’s no different than 10,000 other photos and painting of the same scene so hard to claim it’s original enough that anything else is a copy.
The distinctions are sufficiently intricate, and the case law so messed up that if you are determined to produce something similar to someone else’s work, you need to be able to afford a good lawyer. There is no specific line that you can point to and say “don’t cross this line”. A case may be decided one way and a very similar case decided a different way, depending on judge or jury or phase of the moon.