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Entertainment Lawyer Gordon Firemark answers a question, what does it mean to say that a writer has separated rights?

Get the Podcast, Blog & New Media Producer’s Legal Survival Guide at [ Ссылка ]

I purchased your Legal Survival Guide a while back, and found it to be an invaluable guide to copyright issues in my business. It has become my bible in what to do and what not to do. I have run across an issue in my community that I am unsure of what the right thing to do would be. And I know at the end of your publication you invite questions, so please read the
following...

In this installment of Asked and Answered, I'll explain the rules for taking and using photographs or footage of people in your blog, videos, and other media. And stick around 'till the end 'cause I've got a special bonus for you...

My friend Janice is an artist, blogger, and entrepreneur. She wrote to ask...

I have a question about taking photos of a stranger...or I suppose even not a stranger.... And then posting it to your blog. There is some sort of constitutional right mixed with art mixed with freedom of expression mixed with a violation of privacy. I'd love to know where the line is drawn.

This is a question that comes up quite a bit. the truth is, it doesn't really matter whether the person you're shooting is a friend, a stranger, or whatever... what matters are two things:

First.. where and under what circumstances the photography is taking place, and

Second... how you're using the image or footage.

OK.. before I go further, I just need to mention that I'm talking about US Law here... Janice is in Canada, where things might be slightly different. If you're outside the US, check with a local lawyer.. you shouldn't rely too heavily on the information you find here... OK... so US law...

You see, people have different expectations about their privacy when they're in their homes, offices, workplaces, or other places where privacy is a component of things... than they do when they're out in public. This is why the paparazzi aren't supposed to be creeping around in celebrities' backyards, on the studio lots, etc., but they operate pretty freely when out in public spaces like on steets, parks, the beach, and so forth.

You see, here in the US we have the First Amendment to our Constitution.. which creates, among other things... freedom of speech and of the press... and those freedoms are a big part of this analysis...

True artistic expression, whether it's a blog, a poem, or a novel, along with political commentary, news reporting, and other so-called "editorial" type uses are given a wide berth.. and those First Amendment freedoms are very strong. Laws that abridge them are invalid... plain and simple. That's why publications like People Magazine, the national Enquirer, and programs like TMZ are able to use the footage they capture without anybody's permission.

But speech directed at getting someone to engage in a business transaction of some sort, "Commercial Speech," is treated a bit differently. Laws that regulate commercial speech ARE allowed, when there's an important government interest at stake, and the law is reasonably related to that interest. So, under most states' laws... it's NOT ok to use a photo you catch of someone in a public place as part of an advertisement.

That's what got Duanne Reade drugstores into trouble when they tweeted an image of Katherine Heigl carrying one of their shopping bags out to the world... Ms. Heigl didn't like it one bit, and she sued... her right of privacy wasn't invaded, but her **right of publicity** (the right to control commercial use of her name and likeness, probably was. Now, what's interesting is that if TMZ had tweeted the same image, just reporting that Katherine was seen in NYC shopping... it'd probably have been fine. But because the message came directly from the store's twitter account, it took on a different, more commercial, meaning, it looks like an endorsement... and gives rise to possible liability.

But watch out ... there's one more potential pitfall. You have to be careful that the juxtaposition of the photo with your blog post doesn't create a false implication. For example, say you use a photo of a grandfatherly looking man sitting on a park bench, as part of a blog post about child molesters. Even if you don't SAY "this guy's a child molester", the mere implication could be the basis for a defamation lawsuit.

That's why we lawyers recommend using a model release whenever possible. And that's the special bonus I mentioned. I've got a free sample model release you can download and use when you take photos to use on your blog or whatever. Just Jump on over to [ Ссылка ] to get it.

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