Tear a whole stack of hats. We’re image makers, color-management experts, IT nerds and digital-asset managers. The hat that fits me the worst, and seems to confuse a large majority of shooters, amateur and pro alike, is that of the legal eagle.
We live in the most litigious society on earth, and we produce images that are whipped around the planet on the Internet, subject to being co-opted, misappropriated, misused or objected to, all in real time. The legal aspects of making and displaying images, once the exclusive headache of professional photographers, is now a concern for every photo enthusiast who shoots a picture on the street or in a park and posts it to a website or displays it as a print. The questions raised are legion: When do I need a release? What protection is afforded me by the copyright law? How do I prevent infringement? Where and when am I allowed to take a picture? It’s enough to make you jump up and say, "I object, your honor!"
Short of adding "Intellectual Property Lawyer" to your resume, what’s a shooter to do? Fortunately, there’s a more reasonable alternative to going back to law school, in the form of the Photographer’s Legal Guide (www.livephotoattorney.com, 125 pages, $19). Written by attorney and photographer Carolyn Wright, it helps you understand your legal rights and responsibilities as an image maker, in language that doesn’t require you to hold a degree from Harvard Law to understand.
I recently caught up with Carolyn, an avid part-time professional photographer who leads nature and wildlife photography workshops and shoots portraits and events, to ask her a few of the questions that I’m repeatedly asked at seminars, workshops and in e-mail.
Bob Krist: Carolyn, the first question that I get asked in seminars and workshops these days is "When do you need a model release?" Is there any shorthand answer to that?
Carolyn Wright: Well, the shorthand answer is, "If your client requires a model release, then you need one!" (laughs) Legally, the answer is a little different. You only need a model release for commercial usages, not for editorial uses. It’s a little easier to describe commercial use than editorial use. Basically, a commercial use is when a photo of a person is used for an advertisement or endorsement or used in "trade." Trade is when photographs are put on the actual product, such as a T-shirt, coffee mug, lunchbox or something like that.
But just because you sell a photograph, doesn’t make it a commercial use. It gets a little sticky at that point; sometimes the exact difference between editorial use and commercial use is a gray area. That’s when we look to previous court case rulings to make the distinction.
Krist: I know, as a longtime magazine freelancer, that most magazine and newspaper usages are considered editorial uses and, as such, don’t require model releases, but I’ve been asked a lot lately if a model release is required to sell fine-art prints in a gallery. Is there any precedent there?
Wright: There was recently a ruling about an artist who photographed people on the streets of New York and had a gallery show of the prints. There was a man who was photographed and later objected, for religious reasons, to his photo being sold as a print and appearing in a book, and he sued the photographer because the photographer didn’t have a model release.
But the courts determined that even though the photographs were sold, they were regarded as editorial or fine-art use and not commercial use, because the image wasn’t used to sell or endorse any product. That was an important recent indication of what the courts would consider an editorial use.
Krist: In the post-9/11, high-security era, you’re hearing more and more about photographers standing out on the street shooting a building or a park and security guards or police coming out and saying "you can’t photograph here." Are there any guidelines for where you can and can’t make photographs in public places?
Wright: Generally, if you’re on public property or in publicly accessible spaces, they shouldn’t be able to do that. They can ask, if you have your tripod set up and you’re blocking access, say, that you pack up and move. But if you’re in a public place, you should be able to shoot.
Whether you want to go to jail in the process of fighting for your rights is another question you have to ask yourself. You can be within your rights but still be severely inconvenienced in the process of exercising those rights. There are some sensitive governmental facilities that are usually fenced off, and you might have a real uphill battle in those cases. But in most public places, there’s no law against photographing.
I was recently on the top level of a city parking garage, photographing the building across the street for the building owner’s holiday card. And what do you know, a security guard comes across and starts asking a lot of questions. I tried to tell him as nicely as I could that he hadn’t a legal leg to stand on.
Krist: Sometimes you can be polite and sweet talk them, but sometimes you have to dig in your heels. What about if you’re on private property, what then?
Wright:If you’re on private property, you have no recourse because a property owner can prohibit you from doing anything they find offensive—from spitting to playing loud music. They have the right to control what happens on their property, just as you have in your home. But on public property, the rule-of-thumb question is "Would they be able to prevent you from doing what you’re doing (i.e., standing there quietly) if you didn’t have a camera in your hands?" If not, then they probably don’t have the right to prevent you from photographing.
Krist:Let’s talk a bit about copyright. I know that photographers are afforded two levels of protection under the copyright law. If you publish or display a picture with the © and your name and date, you get a minimum level of protection, but for full copyright protection, do you need to take it one step further?
Wright:You’re afforded some copyright protection by the symbol, but in cases of infringement, you’d only be entitled to actual damages. To collect statutory damages, which usually are considerably more money, you have to have registered your images.
Krist:And to do this, you fill out a form (available from www.copyright.gov/forms) and include a copy of the picture. How many pictures can you register at one time?
Wright:If they’re unpublished, there’s no limit to the number of images you can register at one time. For published images, it has to be within a calendar year. I recommend registering them digitally, in CD format, and each photograph should be at 100 x 100 pixels.
Krist: So you can fit a ton of pictures on one CD. I heard that, in the wake of anthrax and white-powder mailings right after 9/11, there was quite a backlog of unopened mail at the Copyright Office.
Wright: That’s correct. But the backlog is down to about five months now, so it’s not as bad as it once was.
Krist: Carolyn, let’s say I’ve read your book and my question still isn’t answered, or I need help in determining my next step, do you offer any consulting services?
Wright: Sure, some photographers have me on a retainer to answer all kinds of questions; I offer several packages with different levels of service. I also offer copyright registration services and can file infringement cases. I’m working on cases in Utah, California and Texas right now. I also work on trademark registrations.
Krist: Thanks for your work on behalf of photographers, Carolyn.