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Bloggers legal rights to use photographs continued

My post highlighting a lawsuit arising out the online use of a photograph drew some attention from Darren Rowse and then some criticism as to a bloggers right to use photographs. Rightfully so, as I did not really do justice to to the topic.

Here’s an update on what I see for issues on a bloggers legal rights and liabilities when it comes to photo’s. And though I practiced law for 17 years, I got no where near copyright, privacy, and right of publicity laws. My post is just to raise some issues I see, not to be a definitive guide. Please chime in where you think I’m off.

Plus understand we’re dealing with state and federal statutory & case law overlaid with each state’s and the US constitution. There’s going to be some grey areas and where you’re located and where the person whose rights you may have violated is located will have an impact.

I can see these general issues:

  • Copyright laws. The same copyright law that applies to text applies to photo’s. You can not use the work of another photographer without their permission or via an exception to general copyright law, ie, Fair Use Doctrine. And your rights will be limited to rights the original owner of the photograph had. For example, if the photographer violated a subject’s right of privacy or only had a limited right to to use the subject’s likeness under publicity laws, you can’t just use a photograph and say the photographer told me it was okay.
  • Right of privacy. There are certain locations where one as a reasonable expectation of privacy. Taking one’s photograph in that location, ie locker room or their home, is a violation of their right of privacy. A football stadium, a public classroom, or a city sidewalk are not places where one has a reasonable expectation of privacy. Photographers have the right to take photographs. And they can do so in such places.
  • Right of publicity. Basically the ‘Right of Publicity‘ is the right of every person to control the commercial use of his or her name, image, likeness, or some other identifying aspect of identity. Here’s where you want a release or agreement with the subject. As you can appreciate, if you’re using the photograph to make some money, especially with a well known subject, be prepared to pay. Note the ‘commercial use’ though. Some non-commercial blogs may be able to use people’s pictures assuming they’re in compliance with other laws.
  • Homeland security. As Kris Krug, one of the presenters at Northern Voice said, “I thought you went to New York City to take pictures.” Apparently not true when taking pictures of certain infrastructure like toll roads Kris found out, when the police stopped him and confiscated his film in the name of homeland security.
  • Contractual rights limiting right to take photographs. By contract, the purchase of a ticket, or the use of certain property, you may have ‘agreed not to photograph’ in return for entry. Think of places like a concert or a mall.

Update: Photopreneur just posted on the right to photograph buildings referencing some related issues and good sources on photography and the law.
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  • http://www.freedom4who.blogspot.com InfoXtreme

    The issue that is going to always come up is when a photo is used along with negative/false and/or personal comments about an individual. If the photo is used without permission & has not been published anywhere, where would this fall? And for example, if someone had a college picture printed in their annual & knew it would be posted on-line, then are they giving up any and all rights when it is concerned to that photo just because they allowed one source to publish it? I wouldn’t think so, because if that was the case, then the Tom Brady photo or one like it that had been published prior to that could have been used… But then comes the “commercial” factor, and actually defining it, b/c if by posting someone’s photo & “bashing” them gets a site more traffic, which leads to more revenue if there are ads on the site. This is a very sticky situation, and it seems “picky” but a situation just like this happenned to me- An individual posted my photo, which has never been published & was never given to anyone for any reason, with negative comments & also used my name in the URL such as http://www.SITE.com/MY-NAME-HERE.html.. The comments include statements with the names of my family members, address, & very negative/obscene comments (that are untrue as well). The main issue I still have with this is that the site is hosted on wordpress & when i contacted them they basically responded that I should just leave it alone & let it go away because if i didn’t the person would find a better way to post it again. Then told me i could email Automatic about the copyright issue(s) related to it. Now think about it, even left alone the issue does not go away when someone types my name into a search engine and that is on the first page!! Now from here would WordPress be liable as well? I am making an appointment with my attorney for next week regarding a business matter & was going to run it by him when we met. Your thoughts?

  • http://www.mikeschinkel.com/blogs/ Mike Schinkel

    >> Homeland security… “I thought you went to New York City to take pictures.” Apparently not true when taking pictures of certain infrastructure like toll roads Kris found out, when the police stopped him and confiscated his film in the name of homeland security.
    Shades of Oceania! Amazing how dystopian our world is becoming.

  • http://www.technospot.net/blogs Ashish Mohta

    Guess the blogger have to make their own images.Sometimes they copy as its not mentioned that its copyright.If they know they might just think once.