Let me start by saying, I know a lot about the first, some about the second and even less about the third. I am not a lawyer and I am not going to give legal advice in this blog. I am going to try to parse out a question that came from a student. I told her that by answering her question and writing a blog posting at the same time, I could kill two birds with one stone.
The digital revolution has changed much of photography. (Duh…) We know that. It is in the process of changing aspects of the photography business that were once very much on the periphery. One such area that is still very much in flux is the law concerning photography and the Internet.
Is the Internet an editorial medium, which generally would not require model releases from the people shown in images on the web? Is the Internet a commercial medium where people shown in photographs have the right to control how their images are used, therefore prompting the need for a model release? Is it both? The answer depends on a lot of variables. The one that that is certain is that there is no one size fits all answer.
As many bloggers would say on a question like this, “I am going to share my opinion. Do not take it as gospel or anything else.” In any kind of legal matter it is always best to consult a lawyer who knows the specialty area that your question is concerned with. For example, a divorce lawyer may be good at mediating agreements between soon-to-be ex-spouses, but he (or she) may not be the best resource for information on copyright law.
A student wrote me:
I just wanted to check with you to make sure I understood your lesson in thinking that posting photos on a personal website is considered “editorial” and doesn’t require getting permission so long as it’s not endorsing anything, besides the photographer implicitly? Does posting photos taken inside a private business change that at all?
I ask because I took a few hundred photos yesterday in a big box store in up-state New York, of our neighbor,s who are a large clan of Brooklyn Hasidic Jews, doing their shopping. I wanted to know if I might get in trouble for posting these photos from inside such a store on a website when I get one running. (I was warned I shouldn’t be photographing, by a few employees in the store.) Is this something I should worry about? Would putting an album temporarily on Facebook be subject to any different guidelines?
Again, I am not a lawyer, and as I say probably too often, I do not play one on T.V. The only way to even begin to answer her question in any coherent way would be to break it down into the many different questions that she had folded into one big question.
First, she wrote, “Does posting photos taken inside a private business change that at all?” And then “I was warned I shouldn’t be photographing, by a few employees in the store.”
This is probably the easiest one to answer. Private property, like a big box store, is private property. The owner of that property has well-established legal rights to control who can photograph on that property. There are two areas of legal thought might offer exceptions, but those are pretty narrowly defined and not likely to help most photographers. Shopping malls (and big box stores often are part of shopping malls) are examples of places where people gather so often that some lawyers now argue that shopping malls are more like town squares. They are our new kind of public place rather than being solely private property. Also, some legal thinkers argue that photojournalists may have some rights to photograph in private spaces if they are in pursuit of photos that serve the public good. Both of these are not likely to help the student who wrote me.
She also wrote “….that posting photos on a personal website is considered “editorial” and doesn’t require getting permission so long as it’s not endorsing anything, besides the photographer implicitly?”
Broadly speaking, a web-site is a web-site. Unless the site is password protected, it is in essence not a “personal” website. The most common argument going now is that the opening pages of a typical photographer’s site sells the site, the photographer, their services, etc. That kind of endorsement most likely would require a model release from a person who is clearly visible on the opening page(s) of such a photographer’s web-site. Again, the inside pages seem to be considered different.
This last point speaks to when my correspondent also wrote: “Would putting an album temporarily on Facebook be subject to any different guidelines?” The legalistic short answer is “no.” The people in the images may perceive Facebook as a more informal and less commercial venue but the lawyers involved probably will not.
The important thing to understand, besides the fact that this is not legal advice, is that anyone can sue anyone for anything. The thinking behind the suit may not be rational, but it can be an annoyance or worse. It can potentially cost a lot to get the most frivolous lawsuit dismissed.
So, this is not to say that the student should or should not post the images on a web-site. The thing that she should do is make sure she is asking the right questions and prepared to deal with any problems that arise from such posting of images on the web.
I try to be prepared for such eventualities by keeping up on the legal landscape as it impact photography. I also have insurance to cover me in case something does go wrong. You can read more about that in an older blog entry at; http://thewellspoint.com/2010/02/26/buying-various-types-of-camera-insurance/
The other thing to remember is that the legal thinking in terms of photography on the Internet is changing. Since so little case law and precedent exists, the legal profession is in essence making it up as they go. This how law often works. A new technology comes along and as that changes the work it involves, it often also changes the culture, the law and our collective perspective on that field. To some degree there is nothing unusual about the process, except that we are watching it as it happens.