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You And The Law Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. 1 212 557-9600. Privacy Law Note: Although our First Amendment to the Constitution includes Freedom of the Press as a provision to encourage the free flow of information, there are instances where it conflicts with the right of privacy. Photographs that we see in tabloids may often seem to border on misuse of the right to Freedom of the Press. On the other hand, if the photo is of legitimate concern to the public, courts have ruled that the use of the photograph is permissible. The distinction usually made in the right to privacy statutes is on the one hand, use in advertising and trade which requires consent of the subject in writing, and on the other hand, editorial type use which does not. Therefore an invasion of privacy would occur even when the photograph is flattering, if used for a commercial purpose without a required consent. However, there would be no such invasion for editorial use of the most private and embarrassing image you have! If you are unsure of whether or not you face potential liability, for a use in print media, you should require the publisher to indemnify you in the event a claim is made. If the publisher is unwilling to do this, you may safely assume there will be a problem. WEB USE IS DIFFERENT This of course will not suffice where a photographer has a Web site on the Internet, because the photographer is the publisher! It's important to remember that, unlike in cases of libel, -truth is not a defense for invasion of privacy. If you are tempted to use a questionable photo on your Web site, you must first determine the type of use. Remember: Promotional use is not editorial! There is no universally accepted privacy law. Each state has its own variation. Many states look to New York State law since New York has been in the forefront of the privacy issue and since many media cases are resolved in New York.
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