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PhotoRESEARCHER |
PhotoRESEARCHER Newsletter for May Week One ## 440A |
KEY WORDS: | Negligence | Newsworthy | Victor Englebert| Copyright | Travelers | Photo Need | Tree | White Mailers |
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It’s How The Picture Is Used
by Joel Hecker, Esq.
Advance Notes: It
is axiomatic in the photography industry that a model release is not required
if the resulting use of a person’s likeness or image is editorial
in nature, such as to accompany a newsworthy story. The belief stems from
judicial decisions interpreting the various state privacy statutes, which
generally prohibit the use of a person’s likeness or image for purposes
of advertising or trade without the model’s written consent.
In a federal case back in 1999 that was brought in the Southern District of New York, a model, Jamie Messenger, sued the publishing giant Gruner & Jahr USA, for invasion of her privacy by their publishing of photos of her in YM Magazine. The Judge dismissed claims based upon negligence and libel, but permitted the invasion of privacy claim to go to the jury for decision, on the theory that the photos were used in a way that could have been misleading. The jury then found that, in fact, the photos had been used in a misleading manner.
The court made a distinction between the "newsworthiness" of a story which exempts the use from the statutory requirement of a written model release, and a misleading use, which is by definition, not newsworthy. It is puzzling, however, how use of a photo in an admittedly newsworthy magazine, where the photo was also found to be reasonably related to the story, can be an invasion of privacy because it was misleading, while at the same time the libel claim based on the same facts was dismissed. Both sides have indicated an intent to appeal.
In any event, the lesson is clear: one never knows what tomorrow will bring, so be aware of how you utilize images in a layout.
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. Phone: 1 212 557-9600.
Benja Iglesis |
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CHANGES Each month we report to you moves among, within and between: publishing houses, stock agencies, photobuyers, photo researchers, ad agencies, and design firms. RECREATION PUBLICATIONS (4090 S. McCarran Blvd., Suite E, Reno, NV 89502) former contact and e-mail: Janet Harr, Advertising Coordinator, janet@yachtsforsale.com ; current contact and e-mail: Lana Olson, Advertising Coordinator, lana@yachtsforsale.com . GRANT, SCOTT & HURLEY (350 Pacific Ave #208, San Francisco, CA 94133) Former contact and e-mail: Philip McCanless, Art Buyer, Philip@gshsf.com ; current contact and e-mail: Daniel Hastings, Art Buyer, Daniel@gshsf.com . DANCE TEACHER, LIFESTYLE MEDIA INC (110 William St, 23rd Fl, New York, NY 10038) former contact and e-mail: Susan Amoruso, Editor, samoruso@lifestylemedia.com . Current contact and e-mail: Colin Fowler, Photo Editor, cfowler@lifestylemedia.com . OUTPOST MAGAZINE (425 Queen St W Suite 201, Toronto, ON M5V 2A5, CANADA) former contact: Chris Frey, Editor-in-Chief; current contact and e-mail: Matt Robinson, Publisher, matt@outpostmagazine.com . THE SIGNATURE AGENCY (4515 Falls of Neuse Rd, Raleigh, NC 27609) former contact and e-mail: Robert Morrow, Creative Director, rmorrow@signatureagency.com ; current contact and e-mail: Tracey Rehberg, Creative Director, trehberg@signatureagency.com . FELDMAN & ASSOCIATES INC (211 Waukegan Rd, Suite 200, Northfield, IL 60093) former contact and e-mail: Robb Hill, Photo Researcher, rhill@feldmans.net ; current contact and e-mail: Christina Cummins, Photo Researcher, ccummins@feldmans.net .
Dennis Frates
States Can Infringe Your Copyright! by Joel Hecker Esq. The Eleventh Amendment to the constitution deprives federal courts of jurisdiction to hear lawsuits which are filed by citizens against any state. This extends to any agency of the state. This immunity is particularly harmful to Copyright owners when damages are sought, because the Copyright Act confers exclusive jurisdiction for such claims in federal court. Thus, the Copyright Act precludes suits seeking damages for copyright infringement in state court. Therefore, copyright infringement claims seeking monetary damages cannot be pursued in either federal or state court! Congress has tried to get around this dilemma by amending the Copyright Act to authorize such a suit. However, two recent cases in Texas, Chavez vs. Arte Publico Press, and Rodrigues vs. Texas Commission on the Arts, have held that Congress does not have the constitutional power to grant this type of jurisdiction to the federal courts. This constitutional restriction applies only to monetary damages, since states may still be sued in federal court for injunctive relief. This means a publisher can stop a state from infringing their work, but cannot collect damages. Accordingly, until or unless the law is modified, when dealing with a state entity you should take particular care to insure that your contracts contain provisions which will override these restrictions. 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. Phone: 1 212 557-9600.
TRAVELERS ABROAD
Shawn McGrath Judy Taylor Robert Maust Jason Lauré Lee Snider
Note: If the URL is long, it may extend to two lines. In that case - clicking on it won't work. Instead, "copy and paste" the URL. FASHIONABLE THIEVERY? Galliano
faces $325,000 damages for plagiarism - The maverick British
designer John Galliano, the creative force behind Christian
Dior, has been ordered to pay 200,000 euro ($325,000)in damages
to William Klein, the celebrated American photographer, for
plagiarizing his work in an advertising campaign. THINK PATTERNS Find the Great Images Inside Your Photos - Noted photographer Vincent Versace explains how to think of your images as patterns, and how to interrupt those patterns for the most effective photos. http://www.creativepro.com/story/feature/25393.html BIG WINNERS 2007 Pulitzer Prizes Announced
- AP's Oded Balilty, Sacramento Bee's Renee C. Byer, and Los
Angeles Times' Rick Loomis win photo Pulitzers. http://www.popphoto.com/photographynewswire/ REVERSAL Rabble-Rousing Photographers Now
Lead Group They Once Admonished. An atmosphere of optimism
prevailed at the Jeddah House of Photography when two Saudi
camera buffs became heads of the group, which is part of the
governmental Arts and Culture Society. ENTREPRENEUR An interview with Danita Delimont-
CEO, Danita Delimont Stock Photography, who started in 2000,
Danita Delimont Stock Photography, which specializes in worldwide
travel, nature, and lifestyle, images. TOUCHY SUBJECT New York Times Ran Retouched
Flood Picture - The editors' note said the alteration was
in violation of the paper's policy and editors would not have
printed the photo if they were aware it had been retouched.
TERRORISM THROUGH PHOTOGRAPHY Looking into
the bones of terrorism - The images of Inside Terrorism are
extraordinary because they compel us to think about both art
and life in new ways; they are war photographs from the ever-shifting
front lines of a conflict in which anyone can be a target
and no place is safe.
AERIAL GUY He's on a mission to capture best
shot High in the sky, with a digital camera, Allan Goldstein
snaps photos of golf courses,
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After living a life of travels and adventures for 48 years,
Victor Englebert has found himself chained to a computer.
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