Do you need permission to sell licenses for photos of people?

In general, you may photograph people in public. The use of those photographs can be restricted due to state privacy laws, often called the “right of publicity” or “misappropriation.” While the specifics of these laws vary by state, they prevent the unauthorized use of a person’s likeness for commercial purposes (such as on merchandise or for advertising or trade). The laws do not apply if the image is used editorially, which includes newsworthy items and fine art. See my September 14, 2005, blog entry for a summary of the different privacy rights.

In the recent case of Maloney v. T3 Media, Inc., former student-athletes Patrick Maloney and Tim Judge alleged that T3Media had unlawfully exploited their likenesses commercially by selling licenses for photographs for “non-commercial art” purposes.

On appeal, the U.S. Court of Appeals for the Ninth Circuit noted that the Copyright Act affords copyright owners the “exclusive rights” to display, perform, reproduce, or distribute copies of a copyrighted work, to authorize others to do those things, and to prepare derivative works based upon the copyrighted work. 17 U.S.C. § 106. In other words, the copyright in a photo gives the owner “the right to control the work,” including the power to to make the work available to the public.

Section 301 of the Copyright Act works “to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works,” so long as the rights fall “within the scope of the Federal copyright law.” H.R. Rep. No. 94-1476, at 130 (1976). That is, copyright law (which is federal law) will preempt or override a conflicting state law.

After an extensive two-part analysis, the Court held that the Copyright Act preempted the plaintiff’s state-based right-of-privacy claims “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.” That means that T3 did not violate the athletes’ rights of privacy when selling licenses for photos of the players for editorial use, even if T3 made money from the licenses. The criterion is the end-user’s use of the licensed photos.

On the other hand, the Court noted that a right of publicity claim is not preempted when someone’s name or likeness is used without consent on merchandise or in advertising. That would be a “commercial” use requiring the person’s permission, such as through a model release. Since Maloney and Judge never alleged that their names or likenesses were in connection with the sale of merchandise or in advertising, it wasn’t an issue.

For a more detail analysis of the case, check Rebecca Tushnet’s blog entry.

What does this mean for photographers? Make sure that you have a model release before using a person’s photograph commercially. In this case, though, consent wasn’t needed because the photos were being licensed only for non-commercial/editorial use.

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5 Things to Know When Taking Photos

snow-goose-blue Copyright Carolyn E. Wright

Here are 5 things to know when taking photographs:

  1. Your photo is protected by copyright the second you take it.

A copyright is created at the moment a work is made into a fixed form. For authors, the copyright is created when you type the words on your computer. For photographers, it is created at the click of the shutter. For artists, it is created when the paint is applied to the canvas. Copyright law protects both unpublished and published works, regardless of whether they have been registered with the U.S. Copyright Office.

  1. You can (and should) use the copyright notice with your photo without registering it.

You don’t have to register your photos with the U.S. Copyright Office to post a copyright notice with them.  The official copyright notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.”  The second part notes the year when the work was first published.  The third required part of a copyright notice is the name of the copyright owner.  The final form looks like this: © 2016 Carolyn E. Wright.

While the copyright no­tice is no longer required for copyright protection, it is a good idea to use it.  It will remind others that your photos are protected by copyright. When you post a copyright notice with your registered images, then the infringer cannot claim that the infringement was innocent and a court is more likely to find that the infringement was willful, supporting the maximum in infringement damages.

  1. As the copyright owner of a photograph, you have exclusive rights to it.

When you own a copyright to a photograph, you have the sole right (also known as the “exclusive right”) to:

  • reproduce the copyrighted work;
  • display the copyrighted work publicly;
  • prepare derivative works based on the copyrighted work; and
  • distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

except when the use is a “fair use.” Learn more at http://www.photoattorney.com/the-fuss-about-fair-use/

  1. You may take photographs of things that are visible from public spaces.

No law prevents property from being photographed from a public area, including bridges, buildings, homes, airports, and accident scenes.  However, a property owner may restrict your photography when you are on the owner’s property.

  1. You may take photographs of people in public.

As long as people, including children, do not have an expectation of privacy, then you may photograph them. People have an expectation of privacy such as when they are in their home with the curtains closed (but not if the windows are not covered) or in a dressing room or bathroom.

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Texas Statute Limiting Photos of People Found To Be Unconstititional

 

Girl at Beach - Copyright Carolyn E. Wright

As addressed in my November 4, 2007, blog entry, photographers in Texas first had to consider whether their photography violated Section 21.15 of the Texas penal code, which states:

 A person commits an offense [of improper photography] if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person; or

(2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

Recently, however, Ronald Thompson was charged with violating part 1 of this statute for taking photos of women in swimsuits at a water park. He sought a writ of habeas corpus, asserting that the code section was “facially unconstitutional in violation of the freedom of speech guarantee of the First Amendment.” On appeal, the Texas Court of Criminal Appeals agreed and struck down the statute.

On behalf of Texas, its State Attorney presented many arguments in support of the statute, including that the taking of photographs is conduct and therefore not inherently expressive. The State claimed that “[p]hotography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time.” The State also contended that the act of pushing the button on the camera to take a picture was not necessarily communicative.

In addition, the State asserted that the specific-intent requirement of the code did not invoke any First Amendment implications because the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.” Moreover, and significant to the right of privacy concerns for photographers, the State claimed that:

[T]he lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public. The State argues that any person who appears in public and exposes a certain part of the body to the public has necessarily consented to that part being photographed, and therefore, the improper-photography statute would not apply. But, the State reasons, if the person is not in public, or the photograph is of an area of the person that is not exposed to the public—such as the use of an X-Ray camera that can see through clothing or a photograph taken up a woman’s skirt—then the improper-photography statute would criminalize such behavior if done with the requisite intent. This construction of the term “consent,” the State argues, would negate any First Amendment implications of the statute.

But, after following the required Constitutional analysis, the Court disagreed with the State and held that “a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.” The First Amendment “is implicated by ‘constitutionally protected speech when that speech is coupled with constitutionally protected thought.'” Even when considering photographs of animal cruelty, obscenity, and child pornography, the U.S. Supreme Court has not questioned the expressive nature of visual images, saying that laws directed at quashing those images “run the risk of suppressing protected expression.”

In sum, when considering the State’s argument that the Constitution did not protect the “taking” of photographs, the Court found no difference between the process of creating the end product from the end product itself. It stated: “We conclude that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.”

The Court finished its analogy with this significant note:

[In a prior case,] this Court expressed its incredulity that reasonable suspicion could arise from taking photographs in a public place: “Photographs are routinely taken of people in public places, including at public beaches, where bathing suits are also commonly worn, and at concerts, festivals, and sporting events.” “Taking photographs of people at such venues,” the Court said, “is not unusual, suspicious, or criminal.”

Yes, indeed!

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Update on the Attempt to Make Aerial Photos of Homes Illegal in New Hampshire

Aerial Power Lines - Copyright Carolyn E. Wright

Bill Hemmel has provided an update to the previous blog entry on the attempt to make aerial photos of homes illegal in New Hampshire.  He attended the hearing on the bill and reports as follows:

NH House Bill 619-FN – “AN ACT prohibiting images of a person’s residence to be taken from the air”

The NH House Criminal Justice and Public Safety committee held a hearing on this bill [on] 2/19/2013. Besides the author of this bill (Rep Neal Kurt, R-Hillsboro) and the committee, there were quite a few others in attendance, some surprising. They included the United States Army, NH DOT (Bureau of Aeronautics), the ACLU, and NH State Police, along with paid lobbyists for the NH Broadcasters Association and Apple Computer. A lobbyist from TechAmerica – representing many major hitters in the drone industry – was also there, along with myself and the owner CR Helicopter in Nashua.

The original bill was never submitted to the committee. (My guess is that Rep Kurt received so much flak prior to the hearing, he re-thought his position.)

30 minutes before the hearing started, he presented a revised amendment that deleted all references to anything other than drones. In his opening remarks, he admitted that the bill was conceived after he saw a $300 drone toy – with video – for sale in a mall this past Christmas.

While providing exceptions for law enforcement, the bill now makes it a FELONY for an individual to use a drone for “surveillance”. Surveillance, as defined in his new bill, would include photographing the inside of a building (huh?), or a “recognizable” image of a persons face. (Thus your 12 year old, flying a toy over
the neighbors pool and recording video, would technically be a felon if convicted.)

The bill also prohibits the use of drones carrying weapons or “lazer rays” (honest!), and specifies that they cannot be used to hunt game. First to testify was a Brigadier General from the US Army. He began by firmly reminding the committee that the airspace above New Hampshire was not owned by New Hampshire, but by the United States of America, and therefore controlled by the FAA. One of the committee members challenged him as to where that authority came from. The General was kind enough to quote chapter and verse. There were no more questions.

The only participants to speak in favor of the new bill were the NH Dept of Safety and the ACLU. All others spoke against it.

At the time of recess, a vote had not been taken. A post-session conversation with one of the committee members leads me to believe that the bill will not be included in this years legislation, but may be held for review again next year.

This new version of the amendment is [now] available online at http://www.gencourt.state.nh.us/legislation/amendments/2013-0448H.html

The New Hampshire branch of the ACLU supports the new bill (see http://nhclu.org/hb-619/).

The Concord Monitor newspaper has reported on the latest status of the bill (look for “Drones be gone” towards the middle of the page at http://www.concordmonitor.com/home/4869803-95/state-bill-budget-committee.

Thanks to Bill Hemmel for these updates!

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New Hampshire May Make Aerial Photos of Homes Illegal

Tahoe Keys Aerial Sunrise - Copyright Carolyn E. Wright

New Hampshire is considering HB-619-FN, which seeks to prohibit images of a person’s residence to be taken from the air. The bill states, in part:

A person is guilty of a class A misdemeanor if such person knowingly creates or assists in creating an image of the exterior of any residential dwelling in this state where such image is created by or with the assistance of a satellite, drone, or any device that is not supported by the ground. This prohibition shall not apply where the image does not reveal forms identifiable as human beings or man-made objects. 

Many courts have held that it’s not illegal to photograph a residence, such as the case in California and South Carolina and the issue has been addressed by other lawyers here and here. Usually the issue is whether the photograph invades the privacy of a person, which is difficult to do from the air, but is already addressed by case law.

A hearing on the proposed N.H. bill will be held on Tuesday, February 19 at 2:30 pm in the Legislative Office Building (located behind the statehouse in Concord, N.H.) in Room 204. The NHDOT will be testifying against this bill. You may contact the chair, Laura Pantelakos, at HouseCriminalJusticeandPublicSafety@leg.state.nh.us or (603)436-2148 for more information.

HT: Bill Hemmel

 

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Photo Attorney Returns to TWiL (This Week in Law) #141

I had the recent pleasure of joining TWiL (This Week in Law) again. Hosts Denise Howell and Evan Brown and guest Marty Schwimmer and I discussed privacy issues, including taking and posting photos of kids, my recent DMCA take-down experience, SOPA, and more in Episode #141. Check my other appearances on TWiL in Episode #56 and Episode #124.

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Photo Attorney on TWiL (This Week in Law) #124

I had the pleasure of joining  TWiL (This Week in Law) yesterday for a second time.   Host Evan Brown, guests Wendy Seltzer, J. Matt Buchanan, and I discussed fair use, privacy issues, DMCA take down notices, and other things in Episode #124.  Check my first appearance in Episode #56.

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