I have the vague recollection of a case in which it was determined that the use of an image in the photo book (art) was fine, but that same image's use in promoting the sale of the same book (commerce) was not.
I have read that the courts have likened street photography to freedom of speech. An author could conceivably write a detailed description of a scene under freedom of speech and a photographer can photograph & publish the same as long as neither is used to sell hats cars cat food or their books.
Publishing your own image in any context shouldn't be any issue, unless you sign away your copyright in a special contract. I just had a shoot where a celebrity client wanted me to sign a specific contract saying that I can't use the outtakes in my portfolio. I refused (the shoot still happened and I'm free to do with the photos whatever I want). Commercial use applies only to selling the image to Nike or Apple or the like. But you can take a photo of a stranger, publish it online, sell prints, advertise your services and sell it to a magazine, without any issues. Philip Lorca di Corcia was a nominal case in determining that any artist use of a photo is not considered commercial. He got sued by a Hasidic man he photographed on a street, arguing that using his likeness commercially is illegal and against his religion. Di Corcia was selling the print for thousands of dollars and using the portrait to advertise the show. The subject lost. Laws in UK, or Germany, are much stricter than in the US regarding publishing.
The diCorcia case, I think, is the most prominent in recent history touching on this issue. But my understanding is that it’s the “art” status that makes his usage legal. I, as a commercial photographer, wouldn’t (or ”likely” wouldn’t) be afforded the same leeway had I photographed that man on the street and licensed the image for a commercial purpose. And my new understanding on the subject is that while we have always been afforded leeway in this area, it’s not actually codified in law. The lawyers I speak to are always more risk averse and go right to “get formal permission” even though we’ve never really had to operate that way. Their thinking is this is gray area and there just isn’t a lot of precedent. Mostly my takeaway is that yes, everything you’ve said is true in a practical sense, but the law itself is not as cut and dried as I always believed it to be. And you’re spot on that we’ve got it good, as other countries are much more strict on this.
I don't think it matters if you consider yourself a "commercial" and "art" photographer, only how you use the photo, as you said, if the photographer is licensing it to a brand. When I was shooting weddings my contract said that I own all the copyright to the photos, so I was free to use them in any context, advertising or etc, even though they were technically 'commercial." When I did Meatpacking, I had a subject who found herself in my photos, claimed she was underage in that image and threatened to sue me since the photos were used in a "commercial way"- I was advertising shows with the photo, selling prints and it was published in magazines. She said she was speaking to a lawyer, but then she disappeared. I figured the lawyer told her she had no case. Over the years I have seen the landscape change to more risk averse, as you said. National Geographic publishes photos in any public space taken without permission on their Instagram, but recently they started asking for "oral" permission of the subject if there is a kid or a baby, out of "abundance of caution." It's a complex and fascinating subject, thank you for writing all these installments!
Thank you! I didn’t really touch on it in the piece but when you really dig down into it it’s fascinating to try to discern where art or editorial stops and commerce begins. I think ultimately courts have shown this is what they’re most concerned with. Warhol’s estate lost because they left the art world with that usage. Richard Prince wins precisely because he stays in the art world with his. Fascinating stuff and I ain’t a lawyer so nobody come at me!
A nice ending to this Ternion. Thanks for that word, btw, I have added a new word to my vocabulary! (and no, you do NOT get any royalties).
As it relates to getting express permission from the people featured in your photography, before you publish, in order to be kosher, I am thinking that the courts have sided with the people who were the sole subject of the photograph, or who were the most prominently seen in the shot. I would hope that if you took a shot of a protest march, with 10,000 people seen in the frame, that you wouldn't need permission from each person to publish that photo for your own profit (as a poster), as opposed to publishing in a newspaper, editorially.
I cannot point to the specific exception in law, but I do believe that there is an exception for, "historic" settings. If there was something extraordinarily historic happening, you can take a shot, and sell your picture commercially. Let's say that you were in the crowd at MLK's "I Have A Dream" speech, you could commercialize that pic without having to get permission from the King Estate beforehand. I could be wrong.
Also, the idea that you can use a picture of someone "Editorially", but not "Commercially", is a legal fig-leaf, hiding the commercial interests of the newspaper behind the sacred dressings of "Freedom Of The Press". If I got a pic of the Most Famous Person In The World (™), doing something unspeakably salacious on their back patio, and sold that picture to the New York Times, the Times, could run that picture on their front page, free from worry, while I would be sued into the next century for taking it (it was on private property). If anyone said boo to the Times, a phalanx of lawyers would rush into court, clothed in 1st Amendment righteousness, claiming pure intention and purpose, while the NYT makes millions off the picture.
The news value of the picture might be debatable, but the MFPITW™ would never be able to prove that the paper of record bought, and published, the photo strictly to make money. If the NYT bought my picture simply to kill the story, I would have the money, but I wouldn't be sued because no one, other than the NYT, me, and God, would know that the picture exists. Could I still be sued, if no one ever sees the picture?
I can understand a private individual not wanting to have their likeness being published (for profit) without their consent, but, if the newspapers can make money by selling papers, and they pay shareholders with the profit, I don't see much difference in what low-level shooters like us do when we take pictures in public.
Thanks for the thoughtful comment, Darin. I appreciate it! And I think it illustrates precisely why I find this whole topic so interesting. There are so many nooks and crannies and subtleties that it's difficult to state many hard and fast rules. The next newly complicated case is surely right around the corner.
Thanks Bill for a fascinating trilogy. A large part of the uncertainty seems to be what is commercial. In a completely different context, content creators are being required in some Australian states to have permits for filming in public land such as National Parks - on the basis that posting on YouTube is commercial use. These permits are expensive and usually have very onerous conditions. The requirement has not yet spread to photographers who sell their prints - but I can see that happening.
So an image without permission published in a photo book is art or commerce? There’s nothing confusing about the law.
Precisely!
I have the vague recollection of a case in which it was determined that the use of an image in the photo book (art) was fine, but that same image's use in promoting the sale of the same book (commerce) was not.
I have read that the courts have likened street photography to freedom of speech. An author could conceivably write a detailed description of a scene under freedom of speech and a photographer can photograph & publish the same as long as neither is used to sell hats cars cat food or their books.
Publishing your own image in any context shouldn't be any issue, unless you sign away your copyright in a special contract. I just had a shoot where a celebrity client wanted me to sign a specific contract saying that I can't use the outtakes in my portfolio. I refused (the shoot still happened and I'm free to do with the photos whatever I want). Commercial use applies only to selling the image to Nike or Apple or the like. But you can take a photo of a stranger, publish it online, sell prints, advertise your services and sell it to a magazine, without any issues. Philip Lorca di Corcia was a nominal case in determining that any artist use of a photo is not considered commercial. He got sued by a Hasidic man he photographed on a street, arguing that using his likeness commercially is illegal and against his religion. Di Corcia was selling the print for thousands of dollars and using the portrait to advertise the show. The subject lost. Laws in UK, or Germany, are much stricter than in the US regarding publishing.
The diCorcia case, I think, is the most prominent in recent history touching on this issue. But my understanding is that it’s the “art” status that makes his usage legal. I, as a commercial photographer, wouldn’t (or ”likely” wouldn’t) be afforded the same leeway had I photographed that man on the street and licensed the image for a commercial purpose. And my new understanding on the subject is that while we have always been afforded leeway in this area, it’s not actually codified in law. The lawyers I speak to are always more risk averse and go right to “get formal permission” even though we’ve never really had to operate that way. Their thinking is this is gray area and there just isn’t a lot of precedent. Mostly my takeaway is that yes, everything you’ve said is true in a practical sense, but the law itself is not as cut and dried as I always believed it to be. And you’re spot on that we’ve got it good, as other countries are much more strict on this.
Thank you so much for reading and commenting!
I don't think it matters if you consider yourself a "commercial" and "art" photographer, only how you use the photo, as you said, if the photographer is licensing it to a brand. When I was shooting weddings my contract said that I own all the copyright to the photos, so I was free to use them in any context, advertising or etc, even though they were technically 'commercial." When I did Meatpacking, I had a subject who found herself in my photos, claimed she was underage in that image and threatened to sue me since the photos were used in a "commercial way"- I was advertising shows with the photo, selling prints and it was published in magazines. She said she was speaking to a lawyer, but then she disappeared. I figured the lawyer told her she had no case. Over the years I have seen the landscape change to more risk averse, as you said. National Geographic publishes photos in any public space taken without permission on their Instagram, but recently they started asking for "oral" permission of the subject if there is a kid or a baby, out of "abundance of caution." It's a complex and fascinating subject, thank you for writing all these installments!
Thank you! I didn’t really touch on it in the piece but when you really dig down into it it’s fascinating to try to discern where art or editorial stops and commerce begins. I think ultimately courts have shown this is what they’re most concerned with. Warhol’s estate lost because they left the art world with that usage. Richard Prince wins precisely because he stays in the art world with his. Fascinating stuff and I ain’t a lawyer so nobody come at me!
A nice ending to this Ternion. Thanks for that word, btw, I have added a new word to my vocabulary! (and no, you do NOT get any royalties).
As it relates to getting express permission from the people featured in your photography, before you publish, in order to be kosher, I am thinking that the courts have sided with the people who were the sole subject of the photograph, or who were the most prominently seen in the shot. I would hope that if you took a shot of a protest march, with 10,000 people seen in the frame, that you wouldn't need permission from each person to publish that photo for your own profit (as a poster), as opposed to publishing in a newspaper, editorially.
I cannot point to the specific exception in law, but I do believe that there is an exception for, "historic" settings. If there was something extraordinarily historic happening, you can take a shot, and sell your picture commercially. Let's say that you were in the crowd at MLK's "I Have A Dream" speech, you could commercialize that pic without having to get permission from the King Estate beforehand. I could be wrong.
Also, the idea that you can use a picture of someone "Editorially", but not "Commercially", is a legal fig-leaf, hiding the commercial interests of the newspaper behind the sacred dressings of "Freedom Of The Press". If I got a pic of the Most Famous Person In The World (™), doing something unspeakably salacious on their back patio, and sold that picture to the New York Times, the Times, could run that picture on their front page, free from worry, while I would be sued into the next century for taking it (it was on private property). If anyone said boo to the Times, a phalanx of lawyers would rush into court, clothed in 1st Amendment righteousness, claiming pure intention and purpose, while the NYT makes millions off the picture.
The news value of the picture might be debatable, but the MFPITW™ would never be able to prove that the paper of record bought, and published, the photo strictly to make money. If the NYT bought my picture simply to kill the story, I would have the money, but I wouldn't be sued because no one, other than the NYT, me, and God, would know that the picture exists. Could I still be sued, if no one ever sees the picture?
I can understand a private individual not wanting to have their likeness being published (for profit) without their consent, but, if the newspapers can make money by selling papers, and they pay shareholders with the profit, I don't see much difference in what low-level shooters like us do when we take pictures in public.
Thanks for the thoughtful comment, Darin. I appreciate it! And I think it illustrates precisely why I find this whole topic so interesting. There are so many nooks and crannies and subtleties that it's difficult to state many hard and fast rules. The next newly complicated case is surely right around the corner.
Thanks Bill for a fascinating trilogy. A large part of the uncertainty seems to be what is commercial. In a completely different context, content creators are being required in some Australian states to have permits for filming in public land such as National Parks - on the basis that posting on YouTube is commercial use. These permits are expensive and usually have very onerous conditions. The requirement has not yet spread to photographers who sell their prints - but I can see that happening.