Re: Taking photos of strangers

[P3D Eric Goldstein <egoldste@xxxxxx>]

Mark Kernes wrote:

> After 20 years as a court reporter (my former profession), I can't imagine a
> judge in any court in this land even allowing a frivilous lawsuit to go
> forward like one involving the use of a picture of a stranger, taken in
> public, used in a competition or even published in a magazine (assuming it's
> not a porno) that didn't defame the person.

Not meaning to beat the dead horse here, but this is an issue which
presents serious potential exposure for any photographer making
commrcial use of his photographs...

Mark, check into it, and you'll discover many, many, many cases
successfully brought against photographers who made commercial use
(promotional use is typically considered commercial use) of a photograph
without a proper release from those individuals who are recognizable and
not incidental within. Depending upon the specifics of the case, damages
can be quite substantial. Defamation is not the issue here (though it
*can* be in certain circumstances, as you point out); it is the theft of
personal property which this matter addresses itself to. Publishing the
image in a magazine, an example you raise, is a clear violation (in a
non-news, for-profit situation), and there have been numerous successful
actions won in situations won in just such circumstances.

This is such a well-established principle, that those of us on the
commercial side of recording and distributing images are compelled to
regularly review our practices and procedures regarding these matters
with corporate lawyers who have been retained to keep us out of trouble.

Will you as an ameteur, an individual, entering a local competition get
caught if you don't secure a release? If you get caught, will anyone
bother to take action against you? If they take action, could they
possibly extract compensation from you? Will you be sued? Will there be
fines or legal expenses?

Most important... Is it the right thing to do?

No one can provide the answer to these questions, because so much
depends upon the individuals involved in each instance, and the specific
circumstances of each case.

What you do is a matter of personal judgment and conscience. As far as
the law and the courts are concerned, in my mind there is no question
whatsoever...

As usual, discussing personal experience and not dispending legal
advice...


Eric G.


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