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Photo Websites and Misappropriation of Likeness

July 23rd, 2012 by Alicia Calzada

One question that I have long felt to be open is whether or not a news photographer, whose business is taking pictures of people, could be liable for misappropriation of likeness for using someone’s image without consent on a website designed primarily to sell that photographer’s services, or the images themselves.

First, let me explain a little bit about “misappropriation of likeness,” also referred to as the “right of publicity.” This is one of the privacy torts. Basically, every person has the right to control the commercial use of their “likeness,” that is, the picture of themselves – that is why Michael Jordan was paid to endorse Nike. Commercial use can mean use in trade, or use in a way that proposes a transaction. A photographer’s website, when it exists solely to promote that photographer’s professional services and licensing, is a website promoting a product and service.

There is a First Amendment exception to the right against misappropriation, so of course, the subjects of your photographs have no right to control your use of those images in a First Amendment use, such as in a newspaper, book, documentary movie, or news website.

This photo of well-known author Sandra Cisneros can be used without her permission for an article about her or her books. However, it couldn’t be used without permission for an advertisement to sell shawls, her signature accessory. (Photo by Alicia Wagner Calzada)

But that all changes when the same photo is used for commercial purposes, to sell a product or service. If I were using a photo of Shirley Jones to market my business selling psychedelic school buses, I would need her consent. Knowing this, the question arises, if I use a photo of Shirley Jones walking the red carpet, to market my photos of Shirley Jones,  do I need her consent?

A court in California said no, at least not in the circumstances of one case, and last week an appeals court agreed. Jones sued Corbis for violating her right of publicity because they displayed her name and image without her consent on their website as sample images of what could be licensed. The display of the images of Jones was for the purpose of selling a product (the product is a license for the photo of Shirley Jones). All of the photos in question were taken at a red carpet event.

In California, a person can consent to the use of their name or likeness in writing, but the consent can also be implied. The trial court ruled that Jones consented to the taking of the photos, knew that such photos were widely distributed, and in fact, in “at least one of the events at which the pictures were taken, a notice was posted at the entrance of the red carpet. The notice stated that by entering the premises, [Jones] consented to being photographed, and her name, voice and likeness being exploited by any and all means in connection with the event without limitation.” Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1114 (C.D. Cal. 2011) aff’d, 11-56082, 2012 WL 2884790 (9th Cir. July 16, 2012).

The court held that “It is undisputed that [Jones] voluntarily posed for photographers, who she knew would display her images to prospective buyers, for over 40 years without objection. It was well understood in the entertainment industry that potential customers would not purchase images they could not see before the purchase.” Id.

Furthermore, Shirley Jones “knew and understood that photographers on the red carpet could employ third parties to assist them in distributing her photos.” Id.

Of course, this does not mean that Jones’ publicity rights do not exist in regards to the advertising and marketing of other products. The court specifically noted that it’s ruling was limited to holding that the singer/actress consented to the display of her likeness “for the purpose of distributing the images themselves.”

What does this mean for photographers who want to use images of people on their websites? Well, it doesn’t answer all questions, but when a celebrity or other person consents to their photo being taken, they might also be consenting to the use of their image for the purposes of selling the license to that photo. To me this means, if the photos on your website are available to be licensed, and the person in the photo consented to the taking of the photo, you are that much closer to winning on this issue. For this reason, it might be useful to clarify that all of the images on your website are available to be licensed.

Importantly this case involved an interpretation of California law, and did not address the issue of photos taken without the consent of the subject, or photos that promote a photography business but aren’t available for license. But it is still useful information when making decisions on using photographs.

Posted in copyright, First Amendment, Lawsuit, Licensing, Misappropriation of Likeness, Newsgathering, Paparazzi, photographers, Photographers' Rights, photojournalism | No Comments »

A strong example of why copyright matters

July 13th, 2012 by Alicia Calzada

We all talk about how important copyright is as a way to protect our income. However, copyright serves a greater purpose than just a revenue source. It permits the author/artist/creator to control how their work is used. Controlling the uses of your images is incredibly important.

Consider this recent case that is getting a lot of attention. Photographer Kristina Hill took an engagement photo  of a same-sex couple, which one of the grooms posted on his blog. A conservative group then stole the image and turned it into an anti-gay attack ad, targeting a politician for her vote in support of same sex unions.

The original photo by Kristina Hill

The mailer including the stolen, digitally manipulated photograph.

The couple, obviously was distressed. One of the men wrote in a blog post, “I’m in shock and I’m angry and I’m hurt and I’m flabbergasted and I’m livid.” Given all that his community had been through to legalize gay marriage, he was angry that “someone, a stranger, will seek out your image on the internet… steal it and use it in an attempt to destroy others who support you.

So here we have a photographer, whose client was clearly devastated by a use of her photo that was never intended by the photographer or the client. Whether the issue is a wedding photographer protecting her clients from a hate campaign, a wildlife photographer wanting to keep his images from being used by organizations that harm the environment, or a journalist wanting to protect a sensitive source, copyright gives photographers the power to stop such use.

Unfortunately, as much as this incident is proof of the importance of copyright protection, it is also evidence that the system is broken.  Ms. Hill told Photo District News last week that she planned to pursue it, but was uncertain whether or not she has the resources to do so, given that a lawsuit could drag on extensively. She has since obtained representation from the Southern Poverty Law Center which sent a cease and desist letter on her behalf this week. Good for her for finding a solution to protect her clients by defending her images.

If there were ever a reason to pursue an infringement, theft of a photo which vilifies your client is it. The fact that Ms. Hill was faced with the possibility of not pursuing the infringer because of the cost shows how important it is to improve the system for obtaining relief from infringement. This is why the NPPA supports a small claims solution for copyright infringement claims. Regardless of whether or not there are provable financial damages, it should not cost tens of thousands of dollars to get an injunction against uses like this.

If copyright law is not enforceable, it is virtually useless.

 

 

Posted in copyright, Copyright Small Claims, Legal, photographers, Photographers' Rights, U.S. Copyright Office | No Comments »

You and Your Camera as One – In Your Heart and In the Eyes of the Law

July 12th, 2012 by Advocacy Intern and tagged , , , ,

As assaults on photographers by citizens and the police have steadily increased in the past couple of years, it is important that you as a photographer know what your rights are if you are involved in one of these incidents.

A recent example of these altercations comes out of New York, where actor Alec Baldwin shoved photographer Marcus Santos outside of the Marriage Bureau.  Santos later filed a complaint with the New York Police Department.  Alec Baldwin claims that he didn’t punch Santos, and in an interview with David Letterman Baldwin claims that he was in fact only hitting the camera, not the photographer.

The truth of the matter is that Baldwin’s actions could have constituted battery without his ever laying a finger on Santos.  The rule in a majority of states in the country is that a person’s body need not be physically harmed to bring a claim of battery.  If unwanted and intentional contact occurs with something that is closely connected to the body such that it could be considered part of the plaintiff’s person, that contact can be treated as battery.

This can include a camera in one’s hand or around one’s neck.  In fact in one case in Rhode Island, a woman was awarded damages for assault and battery after her mechanic, who she took a picture of when she didn’t like the job he did, admitted to placing his hand on the camera that she was holding in an attempt to stop her from taking his picture.  Any unwanted touching of your camera can give rise to a lawsuit just as if your body was assaulted.  The law accords you a right to personal space and that personal space can be disturbed through physical harm, or simply through touching deemed offensive or violative of personal dignity.

If your camera is physically interfered with while in your possession, know that you may not only have the right to bring a civil suit for damages, but that the aggressor may also be criminally liable.

As photographers we often consider our cameras as extensions of ourselves.  We should take comfort knowing the law is in agreement.

Posted in Alec Baldwin, Assault on Photographers, Cameras, News Photography, Newsgathering, photographers, Photographers' Rights, Street Photography, video cameras | No Comments »

ACLU v Alvarez – Will the Supreme Court Hear the Case?

July 11th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

As you may recall, last week I updated the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping Act (the Act) which makes it a crime to audio record police officers without their permission while they are performing their official duties in a public place.

Well now a case that appeared to be over – isn’t. After a motion hearing, held on July 3, 2012, newly reassigned District Judge Sharon Johnson Coleman granted the ACLU motion for the preliminary injunction and entry of amended complaint in compliance with the Seventh Circuit’s May 8, 2012 opinion. This has the effect of enjoining the State’s Attorney (or anyone else in Illinois) from prosecuting the ACLU or its employees under the Act “for openly audio recording police officers, and civilians talking to such officers, without the consent of the officers and civilians when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted ear of the person making the recording, and (d) the manner of recording is otherwise lawful.” While the language of the preliminary injunction specifically protects only the ACLU, one would hope that the state would also refrain from prosecuting anyone else under the Act, but given Ms. Alvarez’ dogged pursuit of this matter there is no guarantee.

The judge also heard arguments regarding State Attorney Alvarez’ motion to stay the proceedings while she seeks appeal from the United States Supreme Court. motion to stay “that that there is a reasonable probability that four [Supreme Court] justices will consider the issue sufficiently meritorious to grant certiorari, Judge Coleman granted the stay pending the filing the Writ of Certiorari.

In explaining her decision the Court took notice of the Seventh Circuit’s opinion finding the Act “an outlier in the country because it has no expectation of privacy provision and instead prohibits all non-consensual recordings.” But she also took note that “the Court has not considered the precise issues here – whether the police have any legitimate privacy interest in their public statements and activities while on duty, which is precisely why the Court may choose to hear the case.” Judge Coleman further rationalized that “while it may be likely that the Supreme Court will affirm the Seventh Circuit’s decision, it would likely do so with greater finality and expediency than if this matter proceeds in this Court and through a second appeal to the Seventh Circuit.” She also struck a proper balance by protecting both parties rights, finding that during the stay “Alvarez will not suffer any harm by not prosecuting anyone under this statute” while “the ACLU has the benefit of a preliminary injunction protecting their activities and precluding prosecution under the Act.”

She has scheduled a status hearing for 10/29/2012 at 9:00 a.m. And so the saga continues.

Posted in ACLU v Alvarez, Chicago, Chicago Police, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, Photographers' Rights, Reasonable Expectation of Privacy, US COurt of Appeals for the 7th Circuit | No Comments »

NPPA Receives Clarification Concerning Media Coverage of Racing Event

July 7th, 2012 by Advocacy Intern and tagged , , , , , ,

The National Press Photographers Association (NPPA) received clarification from Pikes Peak International Hill Climb (PPIHC) today regarding PPIHC’s credentialing process for photographers and its policy on copyright ownership of photographs taken at the event.

PPIHC’s clarification comes in response to a letter sent by the NPPA yesterday after photographers had expressed concerns over PPIHC photograph policies.

“I have received a number of inquiries from members concerned about the language and terms set forth in this agreement and I have my own questions regarding the applicability and propriety of these requirements and ‘grant of rights’ as they pertain to photojournalists,” said Mickey H. Osterreicher, general counsel for NPPA.

PPIHC’s “Photo Rights Agreement” states that “PPIHC owns the rights to any photos taken and copies of the photos will be provided to the Pikes Peak International Hill Climb upon request.”  The agreement further states that there is a $250 fee to obtain “2012 photo rights.”

Neither PPIHC’s photo rights agreement nor its official media guide makes a distinction between commercial and media photographers in regards to credentials and fees.  In a conversation with Osterreicher, a PPIHC spokesperson explained that the photo rights agreement does not apply to photojournalists, but only to photographers who sell their photos to the public.

Osterreicher said that, while it is encouraging that PPIHC will not charge photojournalists or assume ownership over their photos, the fact that the agreement applies to “non-commercial” photography may still confuse photographers, who typically associate the term with editorial photography.  Osterreicher also expressed concern that freelance photographers may be denied credentials, as the PPIHC credential application states that accreditation may only be issued to “approved” news organizations.

Though the application period for obtaining media credentials closed in June, PPIHC has expressed the intent to reopen the credentialing process in light of the race’s rescheduling due to the recent and widespread Colorado wildfires.  Osterreicher said that the rescheduling offers an opportunity for race organizers to clarify their policy in a way that prevents confusion and encourages access for photographers, which in turn will benefit the PPIHC with more media coverage.

According to its website, the PPIHC is the second oldest motor sports race in America.  NPPA attorney Alicia Calzada said that a general concern stemming from events such as PPIHC, which largely takes place on public roads, is that their organizers place restrictions on photography although the event is taking place in a public place where anyone has a right to take pictures.

“No permit should be needed to take pictures from public streets and sidewalks- although given safety issues inherent in racing, local police can certainly impose reasonable time, place and manner restrictions on these places,” Calzada said.

Posted in First Amendment, First Amendment rights, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, Public Photography, Regulations limiting photography | No Comments »

ACLU v Alvarez: The Case Continues

July 5th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

For those of you following the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping act the case is far from over despite the opinion by the United States Court of Appeals for the 7th Circuit on May 8, 2012.

Three days later, Appellee Anita Alvarez filed a motion to extend time to file a petition for rehearing and the ACLU filed a response in opposition. Interestingly enough, both parties used the approaching NATO Summit as the justification for their motion: the State’s Attorney, because her staff was busy preparing for it; and the ACLU, because it wished the preliminary injunction immediately put into effect to prevent the enforcement of the Act during the Summit. On May 15, 2012 the court granted the motion to extend the time to file and on May 29, 2012 in accordance with that order the Appellee filed a petition for an en banc rehearing.

As part of its petition, the State’s Attorney claimed that “[t]he panel majority decision . . . creates [an] unlimited First Amendment right of the public to engage in audio-recording and surveillance of public officials encountering private civilians regardless of whether the persons speaking consent to such recording.” Arguing that the Act “requires the recorder to obtain consent from the putative speakers as a prerequisite to recording,” the State’s Attorney maintains that the Act ultimately “regulates conduct (i.e., failing to obtain consent) not speech.”

Following denial of that motion by the 7th Circuit on June 14, 2012 and the transfer of the case to District Judge Sharon Johnson Coleman, the ACLU filed for entry of its amended complaint and for the implementation of the preliminary injunction on June 25, 2012. The next day it moved for summary judgment. Not surprisingly, on June 28, 2012 the State’s Attorney once again moved “to stay all proceedings in the District Court so that State’s Attorney Alvarez may prepare and file a petition for writ of certiorari in the instant case to the United States Supreme Court. Alternatively, State’s Attorney Alvarez moves to stay briefing of Plaintiff’s motion for summary judgment and allow discovery.”

The ACLU entered its opposition to that motion on July 2, 2012, asserting that “Alvarez does not meet any of the requirements for a stay pending the filing and disposition of a writ of certiorari;” and citing Hollingsworth v. Perry, 130 S. Ct. 705 (2010) for the proposition that “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.”

Among other things, the ACLU argued that the State’s Attorney cannot “meet her burden of proving . . . a reasonable probability that four Justices will vote to grant certiorari;” “that she cannot meet her separate burden of proving ‘a likelihood that irreparable harm will result from the denial of a stay;’” and that she did not articulate with specificity (or in any way whatsoever) facts necessary to overcome  a motion for summary judgment.

Stay tuned for further developments in this ongoing case.

Posted in ACLU v Alvarez, Certiorari, Chicago, Chicago Police, Federal Court, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Reasonable Expectation of Privacy, Recording, Recording Police, US COurt of Appeals for the 7th Circuit, US Supreme Court | No Comments »