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Photos

I have spent a great deal of time studying copyright law and model release issues, having done quite a bit of industrial photography, plus many other types on my own since the 70s. I also study intellectual property rights and laws. You will notice that the legal pages cover our rights, be it copyright, intellectual rights, or otherwise. We both retain rights covering what we supply to the website. Regardless of how much I know, there can be exceptions. I usually am right on target but that still doesn't make me foolproof in the eyes of the law. It is always better to be safe than sorry. Thus far, it hasn't been hard to do.

A website is like a magazine or a book. You can't just publish anything you like. Some things you need permission from others. I give credit where credit is due and I copyright my own images and those of others for them so that it is visible but small. I am a stickler for obeying the law in regards to publishing photos. One complaint can shut down a hosting service. I never want to go through that. I have other customers that would be affected as well. One cannot effectively defend their own copyrights while disregarding those of others. I do the right thing and it is very easy to comply with the laws, plus I provide the permission forms online.

There are two important issues, one is copyright, and the other is content release.

Copyright.

Photographs are copyrighted to the photographer, regardless of whose camera was used. Remember the Canadian from Montreal that took a photo of you and your significant other with Niagara Falls in the background? Guess what, that person has the copyright for that photo. Technically, that is what the law says. Photographers very often rent cameras for a shoot. The photographer has the copyright, not the camera owner. Copyright can be passed on to other individuals, or to a company. Copyright expires 70 years following the death of the creator, unless that individual passed the copyright ownership on to a descendent or to a company. In these cases, the copyright does not end (does not become public domain), as long as the rights are passed down (and continued to be), or the company (or entity) is still operating (in business). The copyright does not end or the image does not become public domain until 70 years following the last copyright owner's death or the end of the controlling entity. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication or 120 years from creation, whichever is shorter.

Photographs taken by the government (or paid for by tax dollars) do not require permission to use. This also applies to things such as graphic images or maps.

It is interesting how the government gets away with some copyright issues themselves. For example, the Florida Memory Project is a state website that publishes many photographs of Florida's past. Because the state has made these images available for viewing, some think they are in the public domain, but the website clearly states that some images may be copyrighted and it is up to the user to acquire permission from the original copyright owner to use the photograph; no help is offered to tell who to contact or who the photographer is.

Photos I add to the web will have the copyright statement added to the photo first. It is respect. I also like to "watermark" the images so that they can be identified later should someone use an image from the website without permission. Watermarks can be clearly visible (logo stamp), invisible, or in between (faint). Invisible watermarks are still detectable by software.

Content Release.

Photos that contain images of people or personal items must have a model release from those individuals or the owner of the personal item(s) in some cases, depending on circumstances. Where a release is needed, we have the forms online. If someone wishes to submit a photo for use on the web, the release forms are available for download in the Resources section. One use is a model release for the content (images of persons or personal items). The other use is a release from the photographer, stating that they have retained all rights necessary to publish the photo and have the rights to pass the permission on to your organization. Original rights must be proven (such as a model release of someone in the photograph).

Photos of people under 18 must have a model release signed by the parent (or legal guardian). I don't advocate publishing photos of children on the web at all if they can be identified, simply because of the legal ramifications possible. If any child were to have a bad experience, the parents could attribute the website as contributing to the cause. That is a lawsuit hard to defend.

It is important to know when a model release is needed and when one is not needed. Photos of people minding their own business cannot be used without a model release. However, photos of people at public events or "newsworthy" happenings can be used without permission. For example, if I take a photo of a lady walking along the sidewalk, or cutting flowers in her yard, I cannot publish the photo without getting a model release signed from her. It doesn't matter if she sees me taking the photo or not, whether she waves or not. Until I get a model release signed from her, all I have is a photo that I can view but I cannot publish. Now, if a house is on fire and I stop to photograph the fire, and the same lady walks down the street to view the same fire and comes into view of my camera, then she is at a newsworthy event and I do not need a model release from her (for that photo). I can intentionally point the camera at her without the house fire in view and it is still permissible to publish her photo (a photo of someone at a newsworthy event). This is why newspapers rarely need a model release; they report newsworthy things. Photos taken at your meetings are of a newsworthy event and require no model release.

Public spaces also become newsworthy in a way. For example, if someone is walking along the streets of St. Augustine, they open themselves up to being photographed in a public or touristy place and no model release is needed to publish the photo. At what level does that public place fade to private? It is hard to say whether a neighborhood is that public or touristy. Therefore, it is better to be safe than sorry.

An interesting aspect of the model release need is the personal "belongings" of someone. For example, if I take a photo of a lady's purse, I cannot publish the photo of her purse without a model release signed by the owner, even though the purse may be unique or one of millions like it. Personal belongings include pets, cars, houses, yards, and even the flowers. Most would be thrilled to show off their flowers, yard, or home, but the release is necessary because some individual may not like having their home, yard, or flowers published without their permission or being compensated. The law can be "bendy" here though. If say, you have a "dress-up-your-neighborhood" event, then you can make the area part of a newsworthy event, but it may not pass the test in a dispute.

Prominence in a photo is also important. For example, if I take a photo of a neighborhood entryway, there will be homes visible in the background. No release is necessary from those homeowners. Another example I experienced is when I photographed an artist at an art gallery for a web article about the artist. Another's art was visible in the background. That artist asked me to remove the photo from the website because their art was in the background. I explained that their art was obviously not the prominent item in the photo and could not be avoided, plus in this case, their art was in a public and free art gallery on display and was newsworthy, and therefore could be the main subject and could be published without consent. I asked them to please check with other photographers and legal resources, and included some web resource links. The artist had also asked friends of mine to ask me to remove the photo; they did. The photo was published on my own website. Had it been published on another person's website, I would have let them make the decision but would have suggested they do the same as I did, educate the unknowing, gracefully. I explained that I wasn't going to bend to a request if the request was not valid. That artist needed to learn what is possible and legal. After I explained to the friends, they understood. The artist dropped the request and apologized to the artist I took the photo of. I did not know nor had I met the other artist. It turns out the background artist didn't like or get along with the one I photographed, which may have played into things.

A neighborhood association membership could include exclusion from procuring a model release to publish photos of the exterior of member's homes and yards. I don't see how it would be possible if a homeowner lived in a neighborhood but was not a member.

One other important aspect of model releases is that there is a field for amount of compensation. The amount of compensation should be at least $1 and in most cases, should be $1 only; otherwise, it may not be worth the hassle. If there is not compensation at all (value of $0), then it can come back to haunt you later if the person claims that you made some value by publishing the photo but they were not compensated. Typically, the claim is that the model was not aware of the value they possessed. Cases have been decided that "rewarded" the "model" a substantial amount. If there had been at least a compensation amount of $1, then value was passed on to the model, and they knew they were being compensated. In these cases, judges simply explain that it should be a lesson but no further reward will be granted.

Also, ...

Rights to take photographs

It is also important to know that you can take a photo of anything you want without permission as long as you are on public property, not private space, such as in a museum, where you are still dependent upon their published rules. If you are in a home that you don't live in, and on friendly terms, you might be given permission to take photographs or asked not to. Having permission to take a photograph does not give you rights to publish it without permission. If you live in the home, you can take photographs and publish them.

Occasionally, even in public someone might tell you that you can't take a photograph of something or someone. You can legally take the photograph; you just might not be able to use it without a release being signed. I mean by you being able to take a photograph that you can take a photograph as long as it does not harass the person you are taking a photo of. The Paparazzi deal with this every day.

I used to show every sidewalk performer on a website about the area. I was asked once by a sidewalk performer (musician) to not publish his photo because he didn't want his family or anyone else knowing his whereabouts. Because he was in a public place and as a performer, he knew I could use it without his permission but hoped I wouldn't. He said he wasn't in trouble with the law but did owe his family some money that he could not pay back right then. He sounded sincere, played well, and was well liked by the others. I didn't publish his photo, but mostly because he asked very nicely and knew the legal rights I had.

In the case of national security, in a way, you can't demand your right to take a photograph, even in public. Let's face it, you could use a hidden camera but again, having the photo doesn't give you rights to use it and in the case of national security, you are better off heeding the warnings.

The rules for photography apply to videotaping, digital recording, moving pictures, or any form of successive photos commonly referred to as a movie sequence.

Suppose for example that you are at a major sports event, inside a stadium that allows photographs or movie sequences to be taken. You may think that the possibilities are unlimited, but not necessarily so; it depends on the purpose. If you are recording for the purpose of affecting the outcome of the event, or for future encounters between teams, even if you are hired by one of the teams to film just for the educational purpose of the team, you might find that the team or its coach could be breaking the rules of the team league. That league could fine the coach as much as $500,000 and the team could be ordered to pay $250,000 for spying on an opponent's signals, plus give up future rights to select team members depending on how successful the team plays for that current year.

It all comes down to common sense. It is easy to do the right thing.

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