Using Photographs And The Law
Legal And Ethical Considerations When Using Images
While there are few restrictions on taking photographs and viewing them as part of a private collection there are many legal and moral restrictions on their public use.
This is a general overview of some of the legal issues involved in modern democratic societies. There are differences between legal jurisdictions so you should seek qualified legal advice for specific problems and issues. Local laws and interpretations may differ from the basic principles outlined here please seek competent local advice.
There are some restrictions over inappropriate subject matter exploiting vulnerable subjects limiting photographer’s rights to display and view their images in private. Generally, the restrictions come when photographers seek to publish or sell their images. There are two broad classifications of image use, editorial or commercial.
Editorial
This is realm of the photojournalist and art photographers using their photographers to convey information, tell a story or to use their images as a comment on some aspect of society. Here the notion of freedom of expression, as part of free speech, enables the publishing photographs as part of written work or as a photo essay. This includes publishing them as part of collections or display on the Internet. As works of art, including photographs, are often considered editorial because they are a statement by the artist, or photographer, on some aspect of life. As such, photographers usually do not need model releases to publish or sell their images.
The main legal restriction in this case comes from laws regarding defamation or any other form of denigration of individuals or groups. There are also ethical considerations of publishing photographs of people in distress, and hence profiting from their suffering. The possible public good of highlighting the cause of their suffering counterbalances the possible negative effects on the individual.
Commercial
This generally is using the image o sell something else and not the image itself. The classic cases are advertisements and images on mugs and t-shirts. Wherever the image is used to sell something else it is normally classed as commercial use and you need model, and in some cases property, releases for the subjects.
The same goes for copyrighted images or designs, even if you make the image. If it is a recognizable copy, photographic, drawn, or painted, it still could infringe the right of the copyright owner. Many sporting teams make good money from the sales of replica team where and other merchandise emblazoned with team colors and sponsor logos.
Get Releases
A good rule for any general photographer is to try and get model and property releases whenever practical. Often to make the release valid the subject is required to receive something in return, commonly this is a minimum of a nice print. While the images may not have any immediate value or market, it does allow for possible commercial usage of the image, even though it may sit in your own stock library for some time. This process can also advertise your photography services, as the print is a sample of your work and include a promotional brochure along with print. Even though you have a release, there may be problems if the subject becomes famous.
The Right of Publicity
This not applies to commercial use, but to editorial use as well. While well known people have had little success with legal moves to stop the paparazzi they have tried other avenues to limit the use of images. The argument goes similar to the commercial use case even in editorial use. The court may find that the use of a celebrity image is not an integral part of the publication or artwork and only serves to entice people to buy the product.
Model releases from unknown models that later become famous are problematic and may come under heavy legal challenge from the subject. The images may have dramatically increased in potential value so it is wise to seek the advice of a good lawyer.
This site has U.S. specific legal opinions on photography, as well as links to United Kingdom and Australian sites.
Article on taking photographs and the law
A view on Canadian specific law here...
