Public Photos

[Importer]

LOL - the attorneys gotta love you. I guess if it bothered me, I would pick up the phone and ask them to quit using the image. My guess is that they would quit, even if they did have a photo disclaimer on their tickets. How much money do you think the guy should sue for? What were his damages? Or are we just trying to teach this large corporate entity to quit trampling on our rights as Americans. IMHO litigation for the masses has become the new American dream. Come to America where you can sue anybody for anything. As you can see, I'm not an Attorney. LOL

As American citizens, we have the right to control the commercial
use of our images. The right to control the images of our children
is even more cherished. These rights are granted to us by specific,
enforceable laws.

If you feel these are bad laws, and that companies should be free
to commercially use people's pictures any way they like without
first getting permission -- good for you -- go hire a lobbyist and
get the law changed.

Meanwhile, the laws are on the books in all the states I am aware
of, and there are enough of us that think it's good law that it'll
probably stay that way.

So what exactly is your beef with enforcing the law when somebody
clearly breaks it? If I get on the highway and exceed the speed
limit, I'm getting a speeding ticket, a trip to traffic school, and
a huge increase in my insurance rates. So if some corporation
steals a little girl's picture and uses it to enhance their revenue
stream, why SHOULDN'T they pay for that violation of soomebody's
rights? You either have a rule of law, where people and businesses
are held accountable for their actions, or you don't. Which do you
want?

IMHO, just because there are too many frivolous lawsuits in our
country, it doesn't mean you shouldn't sue when your rights are
flagrently violated. And if this company has half a brain, they'll
quietly settle before it goes to far, and all will be well.

Regards,
Paul
http://www.bangbangphoto.com

In the absence of any such agreement, I think you have a case
that's winnable. Use of your child's image without your permission
is definitely actionable.

Of course, I'm not a lawyer, and I don't play one on TV.

Regards,
Paul
http://www.bangbangphoto.com

I haven't thought much about this subject until Saturday. We
received an advertisement flyer in the mail for a local amusement
park. There printed in the advertisement was a photograph of my
(then) 11 year old daughter plain as day with a friend riding in
the front of the roller coaster.

She went with her friend last year to this park. I asked her if
anyone said anything about taking her photgraph at the time she
visited. She said no.

I talked with the parent of the other child and she was wondering
about this as well.

They were in a public place, but this photo has shown up on a four
color advertisement that has been mailed to many thousands of
households in our metro area.

I have placed a call to the advertising department of this
amusement park, but I had to leave a message.

From what I have read on these forums such commercial use of a
photograph should have required a model release. Since she is a
minor only a parent could have signed such a release and neither me
or my wife has signed such a document.

I wonder if on the back of the ticket in the fine print they tell
you that they can use your image for commercial purposes if you use
the ticket to enter the park. Would this be legal?

--
CDL

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[Dennis Lathem49692]

Some entertainment venues have, printed on the ticket, conditions
-- which often include their right to take your picture and use it
for whatever they want. If they have that, there's not much you can
do.

Well..I don't have a copy of the ticket. It might be that such a right cannot adhere to a ticket contract because of a minor involved, the fact that the ticket seller derived an additional benefit without consideration to the ticket buyer, the seller was in a position where only they can change the conditions of the purchase or the ticket user not knowing such a condition exists.

Nonetheless, I just got off the phone with the Advertising manager for the amusement park. He had the direct mail piece in front of him and located the photo as I described it to him.

According to him, the professional photographer they hired to take the photos for the piece represented to them that he had signed model releases from all of the folks he took the photos of for the advertising piece. The Advertising manager even added that if the person is recognizable they they must have a release. This tells me that he knows something about what is proper.

Under these circumstances I have no quarrell with the amusement park, but with a "professional" photographer that would mis-represent a situation like this. I would think the amusement park would have wanted to see the model releases. I guess now they will.

I have no intention of bringing any kind of action against anyone. I think if the kids get a season pass out of it that will be fine. The park is mailing me a model release for my consideration.

I just know which "professionals" in town to avoid.

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[Joseph S Wisniewski]

I haven't thought much about this subject until Saturday. We
received an advertisement flyer in the mail for a local amusement
park. There printed in the advertisement was a photograph of my
(then) 11 year old daughter plain as day with a friend riding in
the front of the roller coaster.

She went with her friend last year to this park. I asked her if
anyone said anything about taking her photgraph at the time she
visited. She said no.

I'd get really, really steamed.

Years ago, a vase that I blew (yes, I'm a glassblower, too) made the front page of the art section of the Observer/Eccentric newspapers in an article about glass artists. I got over a dozen phonecalls from people who wanted to purchase that vase. Didn't want to come down and look at other vases, they jsut wanted the one in the picture.

There are people out there who "collect" little girls the same way that my callers collect glass. OK, it's not a huge risk, but it's the parent's risk to take.

--
A cyberstalker told me not to post anymore...
So I'm posting even more!

Ciao!

Joe

http://www.swissarmyfork.com

 

[Paul Grupp]

The original post says he already tried to contact the company, and they aren't returning his calls.

I don't know about the law in other states, but here in California, the law is VERY specific about this issue. You can read the civil code here:

http://caselaw.lp.findlaw.com/cacodes/civ/3344-3346.html

I really don't understand your point. If a specific law has been broken in a specific way, why is it somehow wrong for the injured party to want redress?

As American citizens, we have the right to control the commercial
use of our images. The right to control the images of our children
is even more cherished. These rights are granted to us by specific,
enforceable laws.

If you feel these are bad laws, and that companies should be free
to commercially use people's pictures any way they like without
first getting permission -- good for you -- go hire a lobbyist and
get the law changed.

Meanwhile, the laws are on the books in all the states I am aware
of, and there are enough of us that think it's good law that it'll
probably stay that way.

So what exactly is your beef with enforcing the law when somebody
clearly breaks it? If I get on the highway and exceed the speed
limit, I'm getting a speeding ticket, a trip to traffic school, and
a huge increase in my insurance rates. So if some corporation
steals a little girl's picture and uses it to enhance their revenue
stream, why SHOULDN'T they pay for that violation of soomebody's
rights? You either have a rule of law, where people and businesses
are held accountable for their actions, or you don't. Which do you
want?

IMHO, just because there are too many frivolous lawsuits in our
country, it doesn't mean you shouldn't sue when your rights are
flagrently violated. And if this company has half a brain, they'll
quietly settle before it goes to far, and all will be well.

Regards,
Paul
http://www.bangbangphoto.com

In the absence of any such agreement, I think you have a case
that's winnable. Use of your child's image without your permission
is definitely actionable.

Of course, I'm not a lawyer, and I don't play one on TV.

Regards,
Paul
http://www.bangbangphoto.com

I haven't thought much about this subject until Saturday. We
received an advertisement flyer in the mail for a local amusement
park. There printed in the advertisement was a photograph of my
(then) 11 year old daughter plain as day with a friend riding in
the front of the roller coaster.

She went with her friend last year to this park. I asked her if
anyone said anything about taking her photgraph at the time she
visited. She said no.

I talked with the parent of the other child and she was wondering
about this as well.

They were in a public place, but this photo has shown up on a four
color advertisement that has been mailed to many thousands of
households in our metro area.

I have placed a call to the advertising department of this
amusement park, but I had to leave a message.

From what I have read on these forums such commercial use of a
photograph should have required a model release. Since she is a
minor only a parent could have signed such a release and neither me
or my wife has signed such a document.

I wonder if on the back of the ticket in the fine print they tell
you that they can use your image for commercial purposes if you use
the ticket to enter the park. Would this be legal?

--
CDL

See Profile for gear stuff
Pbase Supporter

--

--
Don't blame me. I just work here!
http://www.pbase.com/importer

--

--
Don't blame me. I just work here!
http://www.pbase.com/importer

--
Regards,
Paul
http://www.bangbangphoto.com

 

[Paul Grupp]

Interesting turn of events!

Although -- my natural suspicion is aroused. Since you've taken it this far, it might be worth chatting with the photog -- just to see what his response is. There may be more to the story yet. Or he may be just uninformed, or he may indeed have lied to the park -- but it would be worth getting his side of the story before you put this to bed.

Regards,
Paul
http://www.bangbangphoto.com

Some entertainment venues have, printed on the ticket, conditions
-- which often include their right to take your picture and use it
for whatever they want. If they have that, there's not much you can
do.

Well..I don't have a copy of the ticket. It might be that such a
right cannot adhere to a ticket contract because of a minor
involved, the fact that the ticket seller derived an additional
benefit without consideration to the ticket buyer, the seller was
in a position where only they can change the conditions of the
purchase or the ticket user not knowing such a condition exists.

Nonetheless, I just got off the phone with the Advertising manager
for the amusement park. He had the direct mail piece in front of
him and located the photo as I described it to him.

According to him, the professional photographer they hired to take
the photos for the piece represented to them that he had signed
model releases from all of the folks he took the photos of for the
advertising piece. The Advertising manager even added that if the
person is recognizable they they must have a release. This tells
me that he knows something about what is proper.

Under these circumstances I have no quarrell with the amusement
park, but with a "professional" photographer that would
mis-represent a situation like this. I would think the amusement
park would have wanted to see the model releases. I guess now they
will.

I have no intention of bringing any kind of action against anyone.
I think if the kids get a season pass out of it that will be fine.
The park is mailing me a model release for my consideration.

I just know which "professionals" in town to avoid.

--
CDL

See Profile for gear stuff
Pbase Supporter

 

[Paul Grupp]

I'm not an expert on the nuances here -- but I would think that the book would come under the editorial exclusion provisions of the law.

The law, at least here in California, makes it clear that just because an editorial use incidentally makes money, that doesn't make it a commercial use. Which only makes sense, since virtually all newspapers, TV stations, etc. are in it to make money.

The purpose of the law, I think, is more to do with commercial endorsement -- it attempts to protect us from people suggesting we endorse a product, company or service, without our permission.

http://caselaw.lp.findlaw.com/cacodes/civ/3344-3346.html

On your side note -- I travelled just a few weeks ago, and observed several travellers taking pictures at LAX. I myself took pictures of the planes on the runway, as well as landings, in a very obvious, visible way, and nobody lifted an eyebrow.

Regards,
Paul
http://www.bangbangphoto.com

What confuses me are all of the books of street photos by Gary
Winogrand, Helen Levitt, etc., etc.

I'm fairly doubtful that these photographers stopped to acquire
releases from the thousands of clearly identifiable people they
photographed. Yet, selling a book is a commercial enterprise,
isn’t it?

I’m probably missing something obvious here, but I’ve always
wondered about this.

(As a side note pertaining to a different subject, Winogrand’s
shots of people in airports really get to me. It’s painful to think
that the day’s of walking through an airport taking pictures of
everything and everybody are over, probably never to return again.)

 

[Paul Grupp]

Hi Frank,

Not jerking my knee at all. In case you didn't notice -- this is a DISCUSSION FORUM -- where people are free to give their opinion without other people trying to shut them down. This area of law is very important to many of us photographers here, and I for one think discussion is a good thing, not a bad.

And in case you missed it -- I put a pretty strong caveat on my posting -- I said that I'm not a lawyer, and if you need legal advice, you should see one. And yes, I realize that not all lawyers are well-versed in this subject, just as not all lawyers practice divorce law, or criminal law, or product liability law. I still believe however, when these issues come up, the best place to go for info is a lawyer who practices in the appropriate area.

That being said, I'm pretty sure that Hachette Filipacchi (publisher of Popular Phogotography) is going to argue that in fact, their usage of unreleased photos IS covered by the editorial exclusion. Otherwise, are you suggesting they and all the similar publications have just been lucky for all these years, and nobody has bothered to sue them? That seems pretty unlikely to me.

I do agree with you though -- the extent and limits of what is covered by the editorial exclusion is not particularly clear -- at least not in the California Civil Code, and I would love to hear an knowledgable attorney expound a bit on the subject.

That's because for editorial usage, you DON'T need a model release.
Even if there is a commercial aspect to the editorial usage -- as
there is with every newspaper and magazine -- editorial usage is
protected by law, and no release is necessary.

I am not a lawyer, I don't play one on TV, and this isn't legal
advice. If you need legal advice, you should consult a lawyer, not
an internet forum.

Judging from the magazines used by the interviewees, most of their
pics don't classify as news in the journalistic sense. Why don't
you take a minute and read the interviews before jerking your knee?
Certainly there is no news in people walking around in the streets.
FYI, most attorneys don't practice copyright law or trademark law,
known as intellectual property law. I know, I've been practicing
law for over 15 years and know about as much as the subject as you
do. On a whim I asked some senior lawyers about the subject and
they all gave me that blank stare. It's a very specialized field.
And because my interest has been piqued, I've just ordered two
books regarding the law and photographers.

Frank from Phoenix

Pentax *ist D

--
Regards,
Paul
http://www.bangbangphoto.com

 

[Importer]

Without trying to sound corny; turning the other cheek may be order. I didn't realize that the original post said his calls weren't being returned. If they are ignoring the problem, obviously more has to be done. Here is my first experience with our legal system when I was a college student. I was working a summer job for a municipal park department. The old city truck I used had the brakes fail while I was driving it. We ran a stop sign and a kid broadsided the truck causing us to roll over. Trying to be brief, nobody was seriously injured. I was knocked out, had a couple of broken ribs and some imbedded glass. Nothing permanent. Attorneys came from every where. Some trying to sue, and some trying to get me to sign a waiver. I wouldn't do either and the more I ignored them the more vocal they became, almost to the point of harassment. Attorney speak "It was the city's fault because they failed to maintain that truck. You are due compensation for your pain and suffering". Bull Sh*t! It as an accident, stuff happens. Opposing attorneys saying "well if you aren't going to sue, why not sign a release holding the city harmless?" Same B Sh*t. Everyone wants something on paper. I told them to just leave me alone. To this day, once a year I get the same hold harmless release in the mail. Lets see, that incident took place about 27 years ago. Now, would you like to talk about my divorce? -grin

Don't blame me. I just work here!
http://www.pbase.com/importer

 

[Paul Grupp]

I understand your point -- a guy tried to beat me up in a bar where I was photographing a band, and the bar's security staff just sat there and watched -- no attempt to pull the idiot out of the room, despite the fact that he was swearing at and hitting everybody that came into reach. I chose not to call the cops, or do anything else. That was literally "turning the other cheek."

So I guess we just draw lines in different places. If somebody misappropriated my kid's image and used it for advertising without my permission, I would want something done about it. I don't doubt that others would feel differently, and that's certainly their right. I guess the difference between us is -- I don't feel comfortable criticising somebody who is simply exercising their right to justice. Whether or not any of us chooses to exercise our rights is our own business, regardless of what others think we should do.

Without trying to sound corny; turning the other cheek may be
order. I didn't realize that the original post said his calls
weren't being returned. If they are ignoring the problem, obviously
more has to be done. Here is my first experience with our legal
system when I was a college student. I was working a summer job for
a municipal park department. The old city truck I used had the
brakes fail while I was driving it. We ran a stop sign and a kid
broadsided the truck causing us to roll over. Trying to be brief,
nobody was seriously injured. I was knocked out, had a couple of
broken ribs and some imbedded glass. Nothing permanent. Attorneys
came from every where. Some trying to sue, and some trying to get
me to sign a waiver. I wouldn't do either and the more I ignored
them the more vocal they became, almost to the point of harassment.
Attorney speak "It was the city's fault because they failed to
maintain that truck. You are due compensation for your pain and
suffering". Bull Sh*t! It as an accident, stuff happens. Opposing
attorneys saying "well if you aren't going to sue, why not sign a
release holding the city harmless?" Same B Sh*t. Everyone wants
something on paper. I told them to just leave me alone. To this
day, once a year I get the same hold harmless release in the mail.
Lets see, that incident took place about 27 years ago. Now, would
you like to talk about my divorce? -grin

Don't blame me. I just work here!
http://www.pbase.com/importer

--
Regards,
Paul
http://www.bangbangphoto.com

 

[Paul Grupp]

. . . there's no way in h*ll that your divorce story could top mine! Or at least, for your sake, I hope that's true!

Regards,
Paul
http://www.bangbangphoto.com

So I guess we just draw lines in different places. If somebody
misappropriated my kid's image and used it for advertising without
my permission, I would want something done about it. I don't doubt
that others would feel differently, and that's certainly their
right. I guess the difference between us is -- I don't feel
comfortable criticising somebody who is simply exercising their
right to justice. Whether or not any of us chooses to exercise our
rights is our own business, regardless of what others think we
should do.

Without trying to sound corny; turning the other cheek may be
order. I didn't realize that the original post said his calls
weren't being returned. If they are ignoring the problem, obviously
more has to be done. Here is my first experience with our legal
system when I was a college student. I was working a summer job for
a municipal park department. The old city truck I used had the
brakes fail while I was driving it. We ran a stop sign and a kid
broadsided the truck causing us to roll over. Trying to be brief,
nobody was seriously injured. I was knocked out, had a couple of
broken ribs and some imbedded glass. Nothing permanent. Attorneys
came from every where. Some trying to sue, and some trying to get
me to sign a waiver. I wouldn't do either and the more I ignored
them the more vocal they became, almost to the point of harassment.
Attorney speak "It was the city's fault because they failed to
maintain that truck. You are due compensation for your pain and
suffering". Bull Sh*t! It as an accident, stuff happens. Opposing
attorneys saying "well if you aren't going to sue, why not sign a
release holding the city harmless?" Same B Sh*t. Everyone wants
something on paper. I told them to just leave me alone. To this
day, once a year I get the same hold harmless release in the mail.
Lets see, that incident took place about 27 years ago. Now, would
you like to talk about my divorce? -grin

Don't blame me. I just work here!
http://www.pbase.com/importer

--

 

[sonjabean]

That being said, I'm pretty sure that Hachette Filipacchi
(publisher of Popular Phogotography) is going to argue that in
fact, their usage of unreleased photos IS covered by the editorial
exclusion. Otherwise, are you suggesting they and all the similar
publications have just been lucky for all these years, and nobody
has bothered to sue them? That seems pretty unlikely to me.

Just wanted to point out that a number of the photographers' responses included statements saying that they had displayed their work in shows and sold work from those shows. At least one person (the first guy, I think) said that he had a book published. These situations are definitely NOT covered by the editorial exclusion. I think that is what people are responding to--not the publication of the pictures in Popular Photography.

 

[Dennis Lathem49692]

Interesting turn of events!

Although -- my natural suspicion is aroused. Since you've taken it
this far, it might be worth chatting with the photog -- just to see
what his response is. There may be more to the story yet. Or he may
be just uninformed, or he may indeed have lied to the park -- but
it would be worth getting his side of the story before you put this
to bed.

Well, I have done some research, and the person named does hold themselved out in the local yellow pages as a professional photographer. I just don't know whether or not I want to continue to use time from the only day I will be in my office this week to pursue this.

The company that owns the amusement park is a newer owner and some of this stuff might have taken place under the previous owner.

I will have to see how much time I have this week.

Interesting learning experience.

Thanks for your input and concern.

--
CDL

See Profile for gear stuff
Pbase Supporter

 

[Importer]

I agree that if someone used my kid's photo without permission, I would like it either. All I'm saying is that lawyers aren't the only way to go. I shoot kids sports shots. If a parent doesn't want their photo posted on my web site, I don't post it. If they ask me to take it down after the fact, I take it down. I've never had a parent ask me to do that, but I would if they asked. As for the divorce, I think those among us who have gone through that process would agree that it's not much fun. LOL

As for your bar incident, I feel for you. The security staff probably was afraid of the guy also.

Regards,
Paul
http://www.bangbangphoto.com

So I guess we just draw lines in different places. If somebody
misappropriated my kid's image and used it for advertising without
my permission, I would want something done about it. I don't doubt
that others would feel differently, and that's certainly their
right. I guess the difference between us is -- I don't feel
comfortable criticising somebody who is simply exercising their
right to justice. Whether or not any of us chooses to exercise our
rights is our own business, regardless of what others think we
should do.

Without trying to sound corny; turning the other cheek may be
order. I didn't realize that the original post said his calls
weren't being returned. If they are ignoring the problem, obviously
more has to be done. Here is my first experience with our legal
system when I was a college student. I was working a summer job for
a municipal park department. The old city truck I used had the
brakes fail while I was driving it. We ran a stop sign and a kid
broadsided the truck causing us to roll over. Trying to be brief,
nobody was seriously injured. I was knocked out, had a couple of
broken ribs and some imbedded glass. Nothing permanent. Attorneys
came from every where. Some trying to sue, and some trying to get
me to sign a waiver. I wouldn't do either and the more I ignored
them the more vocal they became, almost to the point of harassment.
Attorney speak "It was the city's fault because they failed to
maintain that truck. You are due compensation for your pain and
suffering". Bull Sh*t! It as an accident, stuff happens. Opposing
attorneys saying "well if you aren't going to sue, why not sign a
release holding the city harmless?" Same B Sh*t. Everyone wants
something on paper. I told them to just leave me alone. To this
day, once a year I get the same hold harmless release in the mail.
Lets see, that incident took place about 27 years ago. Now, would
you like to talk about my divorce? -grin

Don't blame me. I just work here!
http://www.pbase.com/importer

--

--
Don't blame me. I just work here!
http://www.pbase.com/importer

 

[Paul Grupp]

Yes, but I'm not sure that -- at least in my state -- that exhibiting in shows or selling individual prints would be commercial usage -- since the commercial usage California law seems to address is more endorsement related than anything else.

I could be wrong though! This is definitely a tricky part of the law.

That being said, I'm pretty sure that Hachette Filipacchi
(publisher of Popular Phogotography) is going to argue that in
fact, their usage of unreleased photos IS covered by the editorial
exclusion. Otherwise, are you suggesting they and all the similar
publications have just been lucky for all these years, and nobody
has bothered to sue them? That seems pretty unlikely to me.

Just wanted to point out that a number of the photographers'
responses included statements saying that they had displayed their
work in shows and sold work from those shows. At least one person
(the first guy, I think) said that he had a book published. These
situations are definitely NOT covered by the editorial exclusion.
I think that is what people are responding to--not the publication
of the pictures in Popular Photography.

--
Regards,
Paul
http://www.bangbangphoto.com

 

[fjohn]

I'm not an expert on the nuances here -- but I would think that the
book would come under the editorial exclusion provisions of the law.

Thanks, now I get it.

On your side note -- I travelled just a few weeks ago, and observed
several travellers taking pictures at LAX. I myself took pictures
of the planes on the runway, as well as landings, in a very
obvious, visible way, and nobody lifted an eyebrow.

That's good to hear.

--
[fjohn]