My attention was brought to news about a photographer who is suing the Idibias for using pictures he took at their wedding without his permission and I thought it would be interesting to see how this pans out. Shortly after, I was told that the Idibias were countersuing this photographer for gate crashing their wedding, rescinding on an agreement between them, and so the story begins. The question is,
1. Who has a right to protect in this case, the couple or the photographer?
To make it easier, we will lean heavily on what the World Intellectual Property Office (WIPO) provides on what circumstances does someone have copyright, what events constitute an infringement on one’s rights as it pertains to photography and when a photographer needs to obtain permission:
Intruding one’s privacy
Photographers may be liable for violating the privacy rights of others when they intentionally intrude in an offensive way upon someone’s private domain. You can usually photograph someone in a public place. But if you surreptitiously or without permission view and photograph people inside their homes, business or other private areas, then you are likely to violate their privacy rights. An offensive intrusion can be anything from, say entering an individual’s house under false pretense, to setting up hidden cameras in order to spy.
Case in point: Was the photographer invited to the wedding as a guest or engaged as a photographer to cover the wedding? If he was not invited nor engaged, but showed up and took pictures which he put up on his website to garner more work (for commercial purposes), then the Idibias have a case against him.
Publicizing private facts
Disclosing a matter concerning someone’s private life to the public could also raise issues of privacy rights. Unless you have permission, you should refrain from publishing or distributing any photo that reveals private affairs of a person, especially if the matter publicized is of a kind that (a) would be highly offensive, and (b) is not of concern to the public. Photographs revealing sexual affairs, private debts, criminal records, certain diseases, psychological problems, etc. are likely to violate privacy rights.
However, in most countries, the right of privacy does not protect against disclosure of matters of legitimate public concern such as newsworthy events. This means that politicians, celebrities and other newsworthy persons may lose their right to privacy to the extent that their private facts are relevant to legitimate news.
Furthermore, many laws do not protect private matters if they are in public view (unless the portrayed person has taken care not to disclose private details to casual observers). Thus, a photo of a mother grieving for her daughter who was victim in a car accident, if it was taken while she was on the street, is usually not considered to be an invasion of privacy. But this does not mean that all such photography is ethical. There are situations where photographers should consider refraining from photographing people, even if it would be legal.
*In case of doubt, the best way to protect yourself from being sued for infringement of privacy rights is to obtain written permission from the person you want to photograph.
Using someone’s image for commercial benefit
Many countries recognize that individuals have a right of publicity. The right of publicity is the direct opposite of the right of privacy. It recognizes that a person’s image has economic value that is presumed to be the result of the person’s own effort and it gives to each person the right to exploit their own image.
Under this right, you could be liable if you use a photograph of someone without his or her consent to gain some commercial benefit. (This was dealt with earlier)
Although the right of publicity is frequently associated with celebrities, every person, regardless of their popularity, has a right to prevent unauthorized use of their name or image for commercial purposes. However, as a matter of practice, right of publicity suits are typically brought by celebrities, who are in a better position than ordinary individuals to demonstrate that their identity has commercial value. You should, therefore, act with special caution before using a photograph of a celebrity for your own commercial gain. If you consider selling photos of celebrities or using them in advertisements or on your website, then you should certainly obtain photographic releases (that is, permission to do so) from the people portrayed in your shots.
I’m a photographer and I would like to take a picture of a venue that has an artiste’s painting on the wall.
As indicated earlier, photographing a copyright work is deemed a way of reproducing the work, and this is an act which the copyright owner has the exclusive right to do. This is why prior permission should be sought before you include a copyright work in your shot.
Some other activities that only the copyright owner has the exclusive right to do (and for which you may need permission) are:
• Making prints of a work, scanning it into digital form, photocopying it, copying digital works, etc.;
• Making a collage from several different photographs or images;
• Adding new artistic elements to an existing work (e.g., colorizing a black and white picture);
• Photographing someone’s work and then displaying the photo to the public (e.g., exhibiting the photo in a gallery, supplying copies to the public in postcard form, putting it on a website, sending it to customers via e-mail, etc.).
Note that Copyright law protects a wide range of different types of material. Examples of copyright works that are routinely reproduced in photographs are:
1. Literary works (books, newspapers, catalogs, magazines);
2. Artistic works (cartoons, paintings, sculptures, statues, architectural works, computer and laser artwork);
3. Photographic works (photos, engravings, posters);
4. Maps, globes, charts, diagrams and technical drawings;
5. Advertisements, commercial prints, billboards and labels;
6. Motion pictures (films, documentaries, television advertisements);
7. Dramatic works (dance, plays, mime); and
8. Works of applied art (artistic jewelry, wallpaper, carpets, toys and fabrics)
So dear photographer, the best way to avoid lawsuits will be to ensure you get written permission from the subject of the proposed picture, the copyright owner of the object/ property to be photographed regardless of the extent of the use of the picture. Also, where you are the right owner or you license your work to a third party, ensure that you are indemnified of any liability that may arise from the licensed use of the picture.
––Excerpts from the article Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People by Lien Verbauwhede (WIPO) were used.