Publishing Photographed Public

[skunkboy]

Here's a question on the three P's.

As a photographer for an aggressive sports photography site, I recently had someone threaten a lawsuit and had some questions as to where it would stand.

The site:
Completely free.
Photos taken a public skate parks and ski resorts.
Nothing ever sold for profit at all - the site is just something for my freetime.

The issue:
Pictures were posted on my site.
Pictures were then used on another site (a public forum site).
Someone made comments so I registered there to defend myself and it was blown out of context into something big.

Being a public place, not making money off of anything in any way, shape, or form, I should be safe in posting - correct?

It was threatened in the end, by the owner of the forum, to file suit on behalf of those on my site for using their pictures. I have no issues back home but happened to relocate and ... wow... it's a different world here. Everybody on my site in the past has appreciated it. I've gotten endless comments from parents, relatives, etc. about how nice it is to see their son/daughter/niece/nephew/grandchild in sports that otherwise wouldn't be photographed.

Being a public place, their names being said out in the open, there not being any entry fees as it's a completely open and free skate park.... I don't see where they would have a case. The ones in this particular situation aren't minors either. Other than the main rider in the middle who started the whole issue, everybody else locally wants me to put their photos back up. I've been told by my assistant webmaster that I should still be safe and she's been a published writer, is a very well known graphic artist, and highly respected local webdesigner.

.....other views/ideas of the situation...?

btw: I've never refused to remove anybody at their request but then again, it's never been asked. If they want removed, it'll be done immediately.

 

[Artemis]

I think what you may need is a form...cant remember the name, but in the UK I believe you need a form, a model form, if the person is in 33.33% of the photo subject, or more, then you need one of these forms...still cant remember the name.

So that means, twins still need this form signed, but 4 people dont, because the people are the subject, they are all less than 33% of the photo, this I believe is the law, but I could be wrong.

Grr still cant remember the form...but it simply says can I take your photo.

To be safe, take that photo down, and you may be ok, and simply next time ask the parents or the person *if they are 18 or over* so that you can take their picture....ohh yeh, if you cant tell who it is, its also ok...

 

[darin3200]

Grr still cant remember the form...but it simply says can I take your photo.

Isn't 'model consent' or 'model release' form?

 

[skunkboy]

...at the same time, it's comparable to going to a pro-sport game with a camera - there's nothing that has to be dealt with there. What's the diff... pro or am? shouldn't be.

I guess it's just frustrating that I've never had problems and have been running my site since 1996 with now over 400 people featured on it.

 

[Christie Photo]

Are you posting photos you did not make? Do I understand correctly?

From the time the shutter is tripped, the PHOTOGRAPHER owns ALL rights to the image unless under the employ or direction of someone else, the that person/company owns the image. It is not to be reproduced or distributed without written consent of the maker.

 

[skunkboy]

I took the pictures. I was out in plain view - standing in the middle of all the ramps. The board that's threatening me is claiming that I can't post them because they're not myself. Because I never had the riders sign anything, the board (with no direct ties to this town even) insists that I can't post the photos. The riders didn't have any issues till I took the main person in question down and now it's just that one person who is mad at me but oh well. Even if the forum did want to pursue anything, they would need the support of the people they're actually doing this for and I doubt that would ever happen since they knew what I was doing with the photos taken.

...just a greedy (um, yeah... I'll keep it clean) if you ask me, someone out trying to be a hotshot and maybe make a buck or two but it seems to me that he'll be wasting more of his time and money if he were to pursue anything. I've got over 400 people in my site and have never had issues like this before but figured I would look into it since someone is trying to turn up the heat.

 

[Artemis]

Isn't 'model consent' or 'model release' form?

:hail:

 

[Artemis]

I still think you need a model release of people, even if its a public place and your in plain view...I believe thats the law...

 

[Jovian]

you need a model release if you're making money off it, or if someone else is making money off of it. If it's "editorial" than no release is needed, hence newspapers...

 

[mentos_007]

Skunkboy, where are you located? Because from your "Location" I cannot read a lot... There is a different law all over the world about publishing pictures. I think you are in US am I right?

 

[skunkboy]

Yes - I split between Minnesota and Michigan. The person giving me the hard time, according to what I've gathered, is either in New Jersey or California... not in either state in question.

 

[Lensmeister]

I still think you need a model release of people, even if its a public place and your in plain view...I believe thats the law...

If this was the case then whilst at a major sporting event like the FA Cup final the newspapers would need 70,000 forms ?

If one persons refused then the pictures wouldn't be able to be published ?

There is another post on these forums about the copyright issue or I have a copy of A PDF about photographers right in the UK.

I think Model release forms are not needed if used in a public place.

Is there anywhere in the USA that can give free legal advice .....

 

[Rob]

Hi Skunkhatdude,

If you're taking pictures in public of people doing things, then you don't need a model release form. You can take pictures of children, adults, horses, property etc. full frame, sole-subject, as long as there are no specific local laws or rules prohibiting photography such as security considerations or freaky local byelaws. As Christie quite correctly says, you own that image once you've captured it and you can do what you like with it and restrict it's reproduction and useage appropriately.

A photographer generally only needs a model release form if they are going to sell the images as stock, because most stock agencies will want a guarantee that the picture can be used with no repercussions. I've found that many models and the public won't sign your release forms anyway, so there's no point taking them to events like skating.

You certainly shouldn't be sued for taking pictures of people showing off in public, unless they can make a case that the images are being used to defame or slander their reputation. Skateboarders skating, skiers skiing etc. on a webpage of sports photography does not to my mind constitute defamatory behaviour and threatening to sue you is really disproportionate and daft.

Incidentally, I'm fairly certain that you can't file a class-action lawsuit without explicit hire from the class members anyway, so suing "on behalf of" shouldn't be possible unless all the affected people have got together, sworn an affidavit and decided to pursue you - this seems unlikely with no prior indications from them that they are dissatisfied with their picture on show. I'd rather hope that they would ask nicely first, rather than resorting to drastic measures.

There's an awful lot of suing in America isn't there!

I suspect in future, you'll be better off contacting an owner of a forum and notifying them that they are in breach of your copyright, rather than wading in and taking on the forum members as a whole. But that said, it sounds like the owner is the one-off problem in this case!

http://thephotoforum.com/forum/showthread.php?t=21932
http://thephotoforum.com/forum/showthread.php?t=22294

Good luck with your situation.

Rob

 

[skunkboy]

hmm, I know I sued you last week but I'm tired of my new Mercedez so I'm suing you this week so I can buy a new BMW... or at least that's how it seems.

Thanks to all for the input and of course I'm by no means giving up or giving in.

From what I've seen, I should be clear between Acceptable Use and Fair Use laws. I've been searching for information on both and as was mentioned by others above, I'm not selling, defaming, or in other way profiting or degrading anybody; so, it seems that the forum has no case. Considering I'm actually starting to work on a website that the control of will be handed to the local riders, I don't think the forum would get the local riders' backing on a class action case.

I've made my points in an e-mail to the one who made his idle threats and if I hear back, I'll inform you guys here.

Thank you to all... now to go enjoy scrolling through photos here.

 

[el_shorty]

This was written by copyright attorney Dianne Brison on photosecrets.com

Publicity and Privacy Rights of Individuals

You may need permission to photograph people due to state laws giving individuals privacy and publicity rights.

Most states in the US recognize that individuals have a right of privacy. The right of privacy gives an individual a legal claim against someone who intrudes on the individual's physical solitude or seclusion, and against those who publicly disclose private facts. Unless you have permission, avoid publishing or distributing any photo of an individual that reveals private facts about the individual (particularly if revealing those private facts might embarrass the individual).

Almost half the states in the US recognize that individuals have a right of publicity. The right of publicity gives an individual a legal claim against one who uses the individual's name, face, image, or voice for commercial benefit without obtaining permission. In case you are wondering how the news media handle this, newspapers and news magazines have a "fair use" privilege to publish names or images in connection with reporting a newsworthy event.

Be particularly careful about celebrities. Using a photograph of a celebrity for your own commercial gain - for example, posting a photo you took of Clint Eastwood on your business's marketing material or Web site - is asking for a lawsuit, even if you took the photograph when you ran into Clint on a public street.

Commercial photographers avoid right of publicity/privacy lawsuits by obtaining photographic releases from people shown in the their shots. If you are considering selling your photos or using them on your Web site, you may want to do the same. The Multimedia Law and Business Handbook contains a sample release. Experienced performers and models are accustomed to signing these releases.