Ad
Ad
Ad
Pages: [1] 2 »   Bottom of Page
Print
Author Topic: Legal Issues  (Read 5783 times)
didger
Sr. Member
****
Offline Offline

Posts: 2030



« on: January 08, 2005, 05:02:29 PM »
ReplyReply

For recognizable pictures of people that you want to sell you definitely need to get them to sign a model release.  Properties and possessions are a bit ambiguous.  If you take a picture of some expensive sculpture in someone's yard or a picture of a special and unique house by a renowned architect you could be in trouble if you sell that without permission.  It's the intellectual property right of either the originator of that thing or of the person that bought it.  It's even possible to "patent" landscape features on private property and you have to get permission to sell copies of photos with that "patented" stuff.  Antelope Canyon is patented, for example, and you need to arrange with the Navajo Nation to sell any photos you take there.  That's because they only make a few million $'s a year on those photo tours, so they can't let you just do whatever you want with the pictures.

Keep in mind, however, that starting a lawsuit is very expensive and rarely worth the hassle, so a minor misjudgement is not going to get a teenager into court.  There also has to be something tangible they can take from you or why bother?  Don't worry, just use a little common sense.
Logged
John Camp
Sr. Member
****
Offline Offline

Posts: 1258


« Reply #1 on: January 08, 2005, 05:52:58 PM »
ReplyReply

I don't know the legal situation in Canada; I know some things about the situation here in the states. Essentially, if you take photographs here in the U.S. in PUBLIC places, you are okay legally, *unless* you use them in a commercial way. This would not include using them either as news or as art. (News and art are almost always okay, as protected free speech.)

If you use them commercially (think, "as a commercial") then you can get in trouble. For example, if you show a young Mom with her beautiful young child running along a beach, and you sell it for a Pampers ad, you could get sued, because the person in the photo may despise Pampers and can claim that her image has been used to promote something she abhors, and that what you did had nothing to do with news or art, but was simply a way of making money. They can ask for and get a cut of the returns and punitive damages. If you want to shoot this kind of thing, you need a model release.

You cannot take a picture of somebody who has an expectation of privacy  call it "art," and get away with it. Say you were invited to a photo shoot (right!) where some of the supermodels were turning their faces to a wall and changing blouses. You get a great shot of "x" with her top off, and sell it as art. Nope. You'll get sued big time. Not only did she have a reasonable expectation of privacy, you're interferring with her business. You'll wind up giving her your film and all prints, all the money you made, punitive damages, and probably her court costs. If the same thng happened on the street, and you sold it to News of the World, then she might be out of luck. It was "news" that a supermodel was disrobing in a public place.

In New York City and other places, if you want to use the sidewalks or the street as a "set," you have to get a permit. This usually just applies to people who are doing commercial photography that requires items (lights, assistants with shades, models, etc.) that will create a disturbance, disturbance being defined as anything that impedes the normal flow of traffic, either foot or motorized. Lots of people ignore the permit requirement and get away with it. The cops'll usually just tell you to move along.  

Then there's the practical "thug" problem. Take a picture of a famous piece of architecture, from a public place, which you have a right to do, and the doorman comes across the street, takes your camera away from you and removes the memory card. You call the cops. They refuse to do anything. You sue, and it becomes your word against the doorman, and the doorman says he was just trying to protect the privacy of the people who live in the building, and look what happened to John Lennon. Chances are, you lose, including all the money you paid your lawyer.

Cops will occassionally run you off if they don't like your looks, or if they're feeling like jerks. Resist, and they arrest you on some horse**** charge like disobeying a lawful order and resisting arrest, and they tell the jury look what happened on 9/11.

Most of this, by the way, is covered fairly frequently by PDN magazine (used to be called Photo District News.)

Bottom line: you can shoot anywhere public, as long as you do not create a disturbance, and don't sell recognizable faces for commercial uses. On the practical side, be a little discreet and you'll most likely be fine.

Come to think of it, I do know a little about Canadian law -- their cops seem to be less tolerant than U.S. cops; they really do seem to think of themselves as the "authority." I base this only on my contact with wildlife cops while fishing -- I fish only for muskies, never keep one, have no interest in eating any fish, never drink anything in a boat, and essentially have been discourteously and unpleasantly treated by two or three of their wildlife people, for doing *nothing.* Their attitude is that you're guilty, they know it, and you're just getting away with it this time. Might very well be different with street cops.

JC
Logged
DiaAzul
Sr. Member
****
Offline Offline

Posts: 777



WWW
« Reply #2 on: January 08, 2005, 06:28:29 PM »
ReplyReply

Quote
Antelope Canyon is patented, for example...
And whose name was put down as the inventor on the patent application?

That has to be the most strange and hilarious patent I have heard of yet. I don't fancy facing up to the choir of heavenly angels in court to contest that one.
Logged

David Plummer    http://photo.tanzo.org/
gwarrellow
Jr. Member
**
Offline Offline

Posts: 65


« Reply #3 on: January 09, 2005, 03:08:56 AM »
ReplyReply

Quote
For recognizable pictures of people that you want to sell you definitely need to get them to sign a model release.  Properties and possessions are a bit ambiguous.  If you take a picture of some expensive sculpture in someone's yard or a picture of a special and unique house by a renowned architect you could be in trouble if you sell that without permission.  It's the intellectual property right of either the originator of that thing or of the person that bought it.  It's even possible to "patent" landscape features on private property and you have to get permission to sell copies of photos with that "patented" stuff.  Antelope Canyon is patented, for example, and you need to arrange with the Navajo Nation to sell any photos you take there.  That's because they only make a few million $'s a year on those photo tours, so they can't let you just do whatever you want with the pictures.
Didger, just a little correction regarding terminology.  First of all it is most certainly not possible to "patent" a natural landscape.  Secondly, art cannot be patented whether it is a painting, a sculpture or a photo for example.  I'm not even sure about the design of a house as I suspect that it may only be possible to patent it if there are INNOVATIVE additions to the design concept.  

Also, once something is presented into the public domain for others to see (it doen't matter what it is) then it cannot be patented because there has been a public disclosure.  The patent must be applied for before the disclosure.  Then there is the high cost associated with obtaining (not simply filing) a patent.

A patent must be an innovative and novel idea that has been put into practice and which has some industrial application. I think there may be truth in what you say but we are talking about something other than "patents" - possibly copyright may apply.

Perhaps some patent attorney can clarify this situation as I can only make reference to my experience as an inventor on pharmacetical patents.
Graham
Logged
Robbennett
Newbie
*
Offline Offline

Posts: 10


WWW
« Reply #4 on: January 09, 2005, 06:44:02 AM »
ReplyReply

Quote
...being threatened by an Antelope canyon guide that I better not violate the Navajo Nation "patent" on the canyon.  
I find it incredible that an Indian group has actually done something like this. Don't the Native Americans believe the land belongs to a higher power, and that we all must live in harmony with nature? Only kill the Buffalo you need to survive, no more. Treat nature with respect. I do not claim to know a lot about American Indian culture or beliefs, but this seems counter to what little I know. This type of attitude seems to run directly opposite of the old TV ad I recall seeing on littering...some slob throws garbage out a passing car window, and an American Indian is seen with a tear in his eye. So concerned about the land...now they claim to have a patent on a natural landscape? Seems odd to me.
Logged

Rob Bennett
Lakeshore-Landscapes.com
gwarrellow
Jr. Member
**
Offline Offline

Posts: 65


« Reply #5 on: January 09, 2005, 05:08:11 AM »
ReplyReply

Quote
Quote
And whose name was put down as the inventor on the patent application?
In this case it would be the Navajo Nation, not as "inventor", but owner.  I don't know why they call this kind of intellectual copyright concept a "patent", but that's the term.  That famous Monterey Peninsula pine tree is also "patented".  
Didger, you are confusing the terms patent, copyright, trademark, inventorship and ownership but I understand your drift  

If you're interested check out these websites:
http://www.patents-info.com/Default.aspx?tabid=177
and search for Navajo at the US Patents office:
http://www.uspto.gov/
You will not find any patent on the Navajo Indians patenting natural landscapes.
Regards
Graham
Logged
gwarrellow
Jr. Member
**
Offline Offline

Posts: 65


« Reply #6 on: January 09, 2005, 10:22:49 AM »
ReplyReply

Quote
Quote
Didger, you are confusing the terms patent, copyright, trademark, inventorship and ownership but I understand your drift  
Well, the semantics of this is of no great interest to me.  The fact is that natural landscape features on private property can be made the intellectual property of the owner and you can't legally take a picture of that and sell it.  The only term that I've ever heard for this is "patent".  I've read of this kind of ownership of intellectual property rights of natural landscape features as a "patent" many times in many contexts, including being threatened by an Antelope canyon guide that I better not violate the Navajo Nation "patent" on the canyon.  

I don't have any confusion about these terms in general but I don't know what other term is ever used for this particular and peculiar situation of gaining intellectual property rights for a landscape feature.  "Patent" is all I've ever heard.  What term are you familiar with for this and where have you found it used?
Unfortunately, this is not semantics, it's as different as film and CCD  

Do you have any references to the use of the term patent in the context you describe.  All I know is that a natural landscape is NOT patentable.  I don't claim to know the correct word for the useage you describe but I'm guessing that it is more likely that they have the COPYRIGHT to images sold for commercial purposes but this should not prevent you from taking and sharing the photos themselves for non-commercial purposes e.g. on a photo forum.  So, the photographer owns the photo but they cannot legally benefit financially.

Anyway, I don't normally jump in on such threads but when I see terminology being so badly used it makes me cringe as it only serves to misinform others unless corrected (you even have Rob using the term now!).
Logged
gwarrellow
Jr. Member
**
Offline Offline

Posts: 65


« Reply #7 on: January 09, 2005, 01:07:34 PM »
ReplyReply

Quote
I don't know anything about the situation of the Navajo and the canyon, but Didger's use of the term "patent" is both correct and the source of the phrase "patent office." A patent was originally just a letter from the Pope or a King granting a right to some substantial thing -- there were "land patents" which essentially granted land to people. The U.S. "patent office" is just the authority that now grants patents, and has come to be retricted (I think) to inventions, but that restriction reflects a later use of the word.
John,
Thanks for this interesting addition to the debate (and apologies to the originator of the thread for going so far off topic!).  I'm certainly very intrigued by this info.  I only know a little about "patent history" but all the refs I have only use the term patent in the context of invention, going back to the 15th century and certainly predating any agreement between Native Indians and "Americans"  
Here's one of the references I have to the history of patenting that is very informative:
http://www.m-cam.com/~watsonj/usptohistory.html

I have had a quick look on Google for the history of the Navaho and found this:
http://www.accessgenealogy.com/native....ist.htm
In the last paragraph it is stated:
"By treaty of Canyon de Chelly, Ariz., Sept. 9, 1849, the Navaho acknowledged the sovereignty of the United States. By treaty of Fort Sumner, New Mexico, June 1, 1868, a reservation was set apart for them in Arizona and New Mexico, and they ceded to the United States their claim to other lands."
You can find the two treaties dating from 1849 and 1868 here:
http://www.accessgenealogy.com/scripts....0020260
http://www.accessgenealogy.com/scripts....0020261
They certainly make interesting reading and even more so to me after my brief encounter with the Grand Canyon and Monument Valley last year.

So to answer Didger's earlier question, perhaps the correct term is "land TREATY" and not a "land patent."

Just for my own education can either you or Didger give me a reliable reference to the term as you describe it.  I apolgise if I have wronged Didger in any way but please educate me Huh
After all I am British and this is your history not mine  
Thanks,
Graham
Logged
John Camp
Sr. Member
****
Offline Offline

Posts: 1258


« Reply #8 on: January 09, 2005, 02:20:08 PM »
ReplyReply

Actually, I think the use of "patent" for something other than inventions was more a British usage than American, though it carried over. See

 http://www.etsu.edu/cas/history/docs/pennliberties.htm

for reference to Wm. Penn's patent on Pennsylvania, granted by the British crown.

JC
Logged
Stef_T
Sr. Member
****
Offline Offline

Posts: 266


« Reply #9 on: January 09, 2005, 02:51:24 PM »
ReplyReply

Quote
Thanks for this interesting addition to the debate (and apologies to the originator of the thread for going so far off topic
No worries mate! I'm following along too with all this, tho I find it rather rediculus that someone could own the copyrights (or patent, or whatever it is called) to a certain scenic view.
Logged
Stef_T
Sr. Member
****
Offline Offline

Posts: 266


« Reply #10 on: January 09, 2005, 03:45:17 PM »
ReplyReply

Can you give us some figures didger? How much did they charge you? or did you simply say you wouldnt take pictures?
Logged
didger
Sr. Member
****
Offline Offline

Posts: 2030



« Reply #11 on: January 09, 2005, 05:24:38 PM »
ReplyReply

Quote
Can you give us some figures didger? How much did they charge you? or did you simply say you wouldnt take pictures?
This was a photographic tour; the last time in my life that I'd ever take part in a photographic tour of any sort.  Everybody was taking pictures and it was hard to find a place to put your tripod down without somebody in your way or you being in somebody's way.  I got the lecture about the patent thing because I happened to mention to the tour guide that I might use one of the pictures on a CD cover.  He did his little rant and I gave him a nice silent smile and decided that if I wanted to use a picture I would just use it.  I've been in there several times before anybody thought of all those tours and squeezing photographers for patent royalties or whatever you want to call it, so I figure I could have claimed that my images preceded their "patent".  In any case, I never ended up using anything.  I've got way way better slot canyon pictures from other areas that are not "patented"; some on much more remote Navajo land and some in other areas altogether; much more fun to do your own exploring without 50 other photographers squeezed into one tight little canyon.  I've found places that Michael Fatali and Gary Ladd (the two full time Page landscape photo pros) didn't even know about and I found all their closely guarded secret places, just by exploring on my own.  That's so much more fun than going to known places that everybody shoots and then it's a real treasure hunt; you never know what's around the next corner.
Logged
Stef_T
Sr. Member
****
Offline Offline

Posts: 266


« Reply #12 on: January 08, 2005, 03:46:51 PM »
ReplyReply

Photography in its very nature exposes the privacy of other people and their posessions. I can only imagine that many people do not want you to take a picture of them, or of their house, cars, property, etc. I was wondering if there is anything that I need to know legally (both Canada and the States) as to taking pictures of other people and their property. Do I need to ask them permission every time, do I need a written agreement, what happens if I don't have this, and want to sell the picture? Everything that you could tell me on the legal issues of photography would be very much apreciated. Thank you.

Stefan Tarnawsky
Logged
paulbk
Sr. Member
****
Offline Offline

Posts: 464



« Reply #13 on: January 08, 2005, 05:15:06 PM »
ReplyReply

Pre Sept. 11 -- the legal guideline: “is there an expectation of privacy?” If yes, you MUST get permission FIRST. So inside a hospital is off limits. But a beach. school sports game, etc., or any clearly public area is okay. Although it may seem rude or even threatening to some. When in doubt, ask.

Post Sept. 11 (United States) – it depends on the mood of the Gestapo. Bin Laden won.
Logged

paul b. kramarchyk
Barkhamsted, Connecticut, USA
Stef_T
Sr. Member
****
Offline Offline

Posts: 266


« Reply #14 on: January 08, 2005, 06:22:49 PM »
ReplyReply

Thank you three for your adivce and your help. If anyone has any more ideas, insights or stories about legal issues of shooting then please let me know.

Mr. Camp, the cops in Toronto, seem to be pretty nice. I have heard many stories of teenagers getting away with petty stuff. Sometimes cops just are looking for something fun to do, and they toy around with you, but this is only something I habe heard and never seen.

The main problem for me is that I am a teenager, therefore, I am instantly prejudged by people, who think that I am a bad kid and am doing everything for the wrong reasons. If a policeman would see me taking pictures with the equipment I plan to get, chances are he'd problably think I stole the it and arrest me. Unfortunately, I really am a good guy, no smoking, no drinking, and definetly no drugs. Straight A student, but its not the cops know that. it really does suck being young.

So I just want to get this straight: If I am shooting in a completely public place, am I safe no matter what I do? Say i am in a park, and I see some kids playing, can I take a picture of them legally without permission? (If the parents kill me that's another thing). Or on a less dramatic scale: I am shooting by the lake, and I take a shot that has a couple walking in the background, not the main subject by any means, but so that their faces are recognizable. Can I take that shot and sell it without their permission legally?

What is a model release and where can I get one from? Also in your experiences, do people usually sign it, or will they tell you to go to he||? What would be there percentage of people who say yes?

Any and all other information and insight about this is very much welcomed, thank you.

Stefan.
Logged
John Camp
Sr. Member
****
Offline Offline

Posts: 1258


« Reply #15 on: January 09, 2005, 12:07:21 AM »
ReplyReply

Quote
What is a model release and where can I get one from? Also in your experiences, do people usually sign it, or will they tell you to go to he||?
Stefan.

A model release is simply a statement from someone releasing you from any liability for using their image in commercial work. Sometimes, as with professional models, you pay them for it. There are standard forms. If you put // Canada "model release" // in Google, about the fifth subject down actually allows you to print out a Canadian model release. If you browse through the results, you will also find several discussions of model releases and when you need them in Canada.

JC
Logged
gwarrellow
Jr. Member
**
Offline Offline

Posts: 65


« Reply #16 on: January 09, 2005, 03:17:53 AM »
ReplyReply

Quote
What is a model release and where can I get one from? Also in your experiences, do people usually sign it, or will they tell you to go to he||? What would be there percentage of people who say yes?
Stefan,
Just to add a little to the excellent comments already provided, I came across this example of a model release form some time back:
http://www.ultimateangles.com/model_release.htm
and this useful webpage on model release guidelines:
http://www.indexstock.com/photographers/MR_PRguides.htm
Remember that it's different if you are using the photos for non-commercial purposes.  I would be very interested to hear responses to some of the other questions you have posed.
Happy shooting,
Graham
Logged
didger
Sr. Member
****
Offline Offline

Posts: 2030



« Reply #17 on: January 09, 2005, 04:16:29 AM »
ReplyReply

Quote
And whose name was put down as the inventor on the patent application?
In this case it would be the Navajo Nation, not as "inventor", but owner.  I don't know why they call this kind of intellectual copyright concept a "patent", but that's the term.  That famous Monterey Peninsula pine tree is also "patented".  You don't need to wait until you die to face a panel of angels if you violate these "patents".  You'll be facing court action right here on Earth if there's anything they can squeeze out of you without spending too much to do it.  The concept of a "patent" for a landscape feature is indeed laughable, but you won't be laughing in court.

HOWEVER, court action for any kinds of copyright issue is actually extremely rare because a suit always costs a lot and rarely nets anything after all the legal fees.  If you want to test the potential viability of a lawsuit effort, see if the lawyer will do it on a contingency basis.  The answer will almost always be "no" where copyright violations are concerned.

In 1965 I had a fairly big thriving business selling prints of my artwork as "psychedelic" posters to head shops, gift shops, etc.  Every image was legally copyrighted with all the correct documentation registered in Washington DC at considerable expense and hassle.  Someone flat out ripped me off by copying my stuff and selling it to the same stores.  I went to a lawyer with all the evidence and my copyright documentation, etc. and asked if he'd due a suit on contingency and he laughed.  He said for about $10,000 (1965 dollars, more like about $80,000 today) and a few months in court he could get a restraining order forbidding this guy to continue this operation.  I've also had a guy threatening to take me to court and get my money, house, car, etc. if I didn't stop using a trademark that he thought he owned, but that I'm sure is in the public domain.  I just laughed at him and told him to go ahead with the suit.  After 10 years I'm still using the trademark and I'm still waiting for a suit. Ho hum.

HOWEVER, be careful about big commercial operations.  Don't try to market a Michael Jackson image without authorization.  Don't even think about doing anything with Mickey Mouse, the name or the image.  I know a stained glass artist that sold his stuff at craft fairs and had made a few things with Mickey Mouse motifs and he got busted and had to stop.  You may not be able to protect your interests, but the big bucks in the world can protect those big bucks.
Logged
didger
Sr. Member
****
Offline Offline

Posts: 2030



« Reply #18 on: January 09, 2005, 05:54:22 AM »
ReplyReply

Quote
Didger, you are confusing the terms patent, copyright, trademark, inventorship and ownership but I understand your drift  
Well, the semantics of this is of no great interest to me.  The fact is that natural landscape features on private property can be made the intellectual property of the owner and you can't legally take a picture of that and sell it.  The only term that I've ever heard for this is "patent".  I've read of this kind of ownership of intellectual property rights of natural landscape features as a "patent" many times in many contexts, including being threatened by an Antelope canyon guide that I better not violate the Navajo Nation "patent" on the canyon.  

I don't have any confusion about these terms in general but I don't know what other term is ever used for this particular and peculiar situation of gaining intellectual property rights for a landscape feature.  "Patent" is all I've ever heard.  What term are you familiar with for this and where have you found it used?
  
I'll steer clear of "patented" or "copyrighted" or "trademarked" or "invented" or "owned" landscape features.  There's plenty that still belong only to God, though the State of Nevada claims such image rights for the entire Valley of Fire State Park and the issue for National Parks is not altogether clear.  The world's water supplies are becoming corporate commodities and maybe air is next.  Take your pictures while you can.
Logged
didger
Sr. Member
****
Offline Offline

Posts: 2030



« Reply #19 on: January 09, 2005, 08:10:42 AM »
ReplyReply

Quote
now they claim to have a patent on a natural landscape? Seems odd to me.
All those Indian Reservation casinos in California, where gambling is otherwise prohibited don't seem odd to you?  Unfortunately, Native American culture is not alive and well.  We're lucky that at least a little of the history is documented and some of the artwork, handicrafts, and musical instruments are still happening.  Maybe here and there on the reservations there are folks you'd never hear about still a little in tune.  They'd avoid Antelope Canyon and the casinos and news media and anthropologists.  

I found the exact same sort of situation in Australia with the Aborigines there.  I don't know about "patented" landscape features, but it seemed that there were constantly "sacred sites" being "discovered" by Caucasian looking 10% genetically Aboriginal city bred lawyers kicking out land owners that spent generations turning desert or scrub brush into a ranch or mining operation or whatever.  Very few "sacred sites" are ever discovered on land without an existing commercial operation.  Welcome to the "real" world.
Logged
Pages: [1] 2 »   Top of Page
Print
Jump to:  

Ad
Ad
Ad