Re: filmscanners: OT: photographing on the street

["Maris V. Lidaka, Sr." <mlidaka@ameritech.net>]

You have done your homework, Laurie.  And thank you for your background
information in the previous message.

There is one statute at the federal level, that being Sect. 43 of the Lanham
Act, 15 USC 1125
<http://caselaw.lp.findlaw.com/casecode/uscodes/15/chapters/22/subchapters/i
ii/sections/section_1125.html>  , which essentially provides for civil
remedies for false claim of or implication of endorsement, generally
endorsement by a celebrity where the celebrity's otherwise-public-domain
image or likeness is used to endorse a product.

The situation in the United States, as Laurie says, varies from State to
State, and the photographer has to also consider that multiple states might
be involved - the photo may be taken in Iowa, the photo published in
Minnesota, distributed in New Mexico, and the subject may now live and
therefore 'be injured in' Maine.  One or more of these states' laws may
apply.

As to the typical man-in-the-street photography, most of the states' laws
start with the "common law" (or, essentially, historical unwritten law
started in Great Britain and continued both there and in the US), and with
the proposition as it is set forth in a fairly universally accepted
statement of the law called the "Restatement (Second) of Torts", which says
as follows:

652A. General Principle
    (1) One who invades the right of privacy of another is subject to
liability for the resulting harm to the interests of the other.
    (2) The right of privacy is invaded by:
        (a) unreasonable intrusion upon the seclusion of another, as stated
in 652B; or
        (b) appropriation of the other's name or likeness, as stated in
652C; or
        (c) unreasonable publicity given to the other's private life, as
stated in 652D; or
        (d) publicity that unreasonably places the other in a false light
before the public,
as stated in 652E.

652C. Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of
another is subject to liability to the other for invasion of his privacy.

http://www.tomwbell.com/NetLaw/Ch05/R2ndTorts.html

This particular 'invasion of privacy' has also been called the Right of
Publicity - the individual's right to the proceeds of publicity deriving
from the use of his or her name, image, etc.  It too has been unofficially
codified in the "Restatement (Third) of Unfair Competition", and reads:

46. Appropriation of the Commercial Value of a Person's Identity: The Right
of Publicity

    One who appropriates the commercial value of a person's identity by
using without consent the person's name, likeness, or other indicia of
identity for purposes of trade is subject to liability for the relief
appropriate under the rules stated in Sect. 48 and 49.

http://www.hllaw.com/a_personality.html

The best article or essay on this topic that I have found is one called
"Taking and Publishing Photographs of People" written by Philip Stripling,
apparently a California lawyer.

http://www.philipstripling.com/photoPublic.html

The article is valuable reading for all photographers, and he describes
several man-in-the-street type photographs where no written release was
obtained, including one where "Henri Cartier-Bresson captured a decisive
moment in the lives of a married couple, without their knowledge and
consent."  The couple won!

Most of the cases, of course, deal with a person's photograph being used in
an advertisement without permission or pay and not with the inclusion of the
photo in a book of photos or newspaper or magazine article, though there are
some of those as well.

Many of the cases depend on the particular Right to Privacy or Right to
Publicity statutes passed by individual states, and each photographer should
review the statutes of the states in which he or she photographs.

The only underlying thread I see (and I am a lawyer though I don't practice
Intellectual Property law) is that if you or your employer or agent intends
to make money off the photograph, be sure you get a signed Release or at
least be sure you have checked the laws and cases of the State where you
engage in your profession.

Maris Lidaka

----- Original Message -----
From: "Laurie Solomon" <laurie@advancenet.net>
To: <filmscanners@halftone.co.uk>
Sent: Monday, May 21, 2001 12:23 AM
Subject: RE: filmscanners: OT: photographing on the street


| Johnny,
|
| There is no one US statute or even set of statutes at the federal level.
| Each state has its own statutes and /or sets of applicable statutes; some
of
| the state statutes recognize things that the relevant federal laws do not
as
| well as recognizing things that other states do not.

[snipped]