The Barefoot Photographer®

a photography blog

Friday, July 25, 2008

The Rights of the Subject

I have talked before about objects in the public domain that you think are – of course – public, therefore they are free from any strings if you photograph them.  Wrong. 


Recently, in a search on the internet for information on this very subject I found that the light show on the Eiffel Tower is a copyrighted work of art.  Anyone photographing it or video taping the event can do so if it is for personal use.  If you plan to show it in a gallery and sell it – you are violating the intellectual property rights of the copyright owner.  The Empire State Building is another protected object.  A photo of the New York City skyline is fine.  But, if you photograph the Empire State Building – and clearly it is the subject of the photo – you are violating the intellectual property rights (if you use it commercially).


I read a story about Brad Pitt initiating a suit against photographers who took photos of him and his family.  The family was outside their home – on their own property.  The photographers were not on their private property – but they had tele-zoom lenses.  These lenses allow the photographers to get pretty good photos without violating any trespass laws.  Some other celebrity is doing a similar action – I can't think of who it is.  Anyway – just because you are on public property or your own private property when you are photographing someone else – you still may have privacy issues to deal with.  The issue would definitely get pushed if the photo shows another party in an unflattering way and you 'publish' it.


If a person or their property is easily identifiable in your photo and you think you may want to use it in a commercial way, you need to secure a release.  When I say commercial way, I mean place it in the public eye.  The only case I have heard of getting around this is the "art excuse."  A photographer, Philip-Lorca diCorcia, had a show at a gallery in NYC called "Heads."  The show featured head shots of people in Times Square.  The photos were taken as the people just walked by on their way to whatever.  One of the subjects, Erno Nussenzweig, felt violated.  Not only was a large photo of his face hanging – it was offered for sale.  The gallery was selling the portraits for $20,000 to $30,000.  Mr. Nussenzweig claimed also that the whole thing went against his religion.  He is an orthodox Jew with a certain sect that has a commandment about 'graven images.'  But – he was on the street – just walking by and in public view.  The photographer snapped the shot and the rest followed.


The lawsuit of Nussenzweig v. diCorcia was filed in 2005.  In February 2006, the court ruled in favor of diCorcia and the gallery.  The court ruled that the use of Nussenzweig's image was a form of artistic expression and that he could not block the publication, display or sale and that he was not entitled to any compensation from the sale of the artwork or any books.  The court also deemed the lawsuit as untimely.  The ruling was that Mr. Nussenzweig had one year from first publication to file a suit.  In March 2007 this ruling was upheld by New York's First Appellate Division.  In November 2007, the New York Court of Appeals sided with diCorcia and the gallery as well. (Sounds like Mr Nussenzweig kept appealing)  They stuck to the timeliness issue and did not get into the whole using someone's image in art thing.  They said that any privacy claims must be made within one year of first publication whether or not the subject learns of the publication during that period.   So if you don't know about it, you better file a case anyway?  OK


What does this tell you?  If you take photos for your own personal enjoyment, don't worry about anything.  Take the photos, look at them at home, don't sweat it.  For me – it says get a release if you want to do anything besides have a photo in your home on display.  If you plan to put photos on sites such as Flickr, you need to be careful and err on the side of caution.  That word "publish" can mean many things to many people.  One local museum clearly states in their photography policy, that you must read and sign off on prior to taking any photos on property, that 'publish' to them includes placing the photo on the internet and they mention Flickr specifically.  If the appeals court did not want to touch the 'images used in art thing' – just think how messy that could become and costly it would be to have a problem.  It seems much much easier to get a release and sleep easily.


Oh, and my trademark issue, I received an email yesterday with lots of "personal advice" from my infringer and she told me that even though she was right and I was wrong, she had changed the wording on her site anyway.  Don't you just love it?! 


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