Andrew Fildes
afildes@xxxxxxxxxxxxx
On 11/11/2007, at 2:01 AM, Bob Whitmire wrote:
>> <snip>
>> 'Non-commercial use' is tricky - it does not cover art so you may
>> sell the image as an image.
>
> Seems to me the US Supreme Court weighed in on this last year. Memory
> is far sketchier than it should be, and I'm too lazy to look it up
> now, but as I recall the court ruled that street-type photography
> displayed and sold in gallery and gallery-like environments did not
> require permission or release.
Of course, I meant 'Commercial use is tricky.' Damn.
AFAIK the test is whether the image is used to sell another product
or whether it is sold as an image in itself. If the latter, it
becomes 'art', no matter what its artistic merit. The other test is
the 'public interest' aspect which enables newspapers and magazines
to function. These should all extend to electronic media so the
posting of images (Your own, not stolen) to illustrate a story should
be quite acceptable.
Of course, problems arise with the international nature of the net.
The law is quite different in parts of Europe and my own 'Dog Pilot'
shot might be quite illegal in France -
http://www.pbase.com/update_image/49597715
- and this would be quite unacceptable -
http://www.pbase.com/afildes/image/49627785
- so can expect a knock on my door from the local representative of
the Gendarmarie or Interpol or what? I think I prefer to rely on the
laws of the nation where I posted it and the nation that hosts the
site (US) and assume that the host has not legal presence in France?
> Seems the New York Times Magazine ran a cover story on, I
> think, upwardly mobile black executives, or some such as that. They
> used a street shot of a dapper black man striding purposefully down a
> Madison Avenue-like environment. As it turned out, the young black
> man in question took exception to the newspaper using his image to
> illustrate the story. It's been so long I can't recall the exact
> details, but I think the crux of the argument was that by using the
> picture, the newspaper labeled him as something he was not, or did
> not want to be known as. The shot was not illustrating an actual news
> story in which the man was involved. I believe the Times had to
> extract its checkbook on that one, but again, memory fails.
I'd be surprised if the case succeeded on that point - given that it
was fair point and not derogatory in any sense nor was there malice
in the use. They may have settled to make it go away but their
offence was one of 'commercial use' rather than hurt feelings and he
was entitled to a fee. Had it been used inside the magazine, to
accompany the story, there should have been no problem. The person
was in a public space and photographed from a public space. Taking
exception to the result is not relevant as the legal logic seems to
go as follows -
1. You are responsible for the way you present yourself when you go
into the public domain.
2. Anyone is freely entitled to look at you while you are there.
3. Taking a photograph and showing it to others is an extension of
that entitlement.
4. It is a free expression unless some other offence is committed -
there was malice in the dissemination, making it libellous, or you
derived profit from it beyond an artistic endeavour or it constitutes
a public nuisance or threat in some way.
If you chose to stride purposefully down Wall Steet in good suit,
people are entitled to assume that you are a trader or somesuch.
==============================================
List usage info: http://www.zuikoholic.com
List nannies: olympusadmin@xxxxxxxxxx
==============================================
|