Whose Image Is It?


On this morning's local news there was a heartwarming story. (Morning news: The perfect blend of happy chatter, weather, traffic, disaster, and meaningless fluff.) A photographer happened to be out and about when she saw a young man proposing to a young lady. She snapped some pictures and provided the couple her contact information.
When she did not get a response, she posted the photos to her Facebook page to see if she might be able to get in contact with them. She had over 500 views of the pictures and word eventually got to the couple who, based on their public face, were touched and happy and the girl got her 15 minutes of local fame as she talked about how wonderful it all was and we all saw the splendiferous power of social media to bring people together and bring happiness and light to our drab existences and bring a smile to our collective faces.
A heartwarming story, no?
No. Actually, this is a chilling story of stolen identities and an insidious violation of privacy.
My father is a professional photographer. And, from years of watching him work (and additional work I've done while involved in various audits), I know there is one thing every photographer understands – get a release from any model/subject of a photograph. Every photographer understands that, while he or she owns the rights to the actual photograph, he or she does not own the image of the individual. Until that release is signed, the photographer cannot use that photograph.
I am assuming that, as a professional, the photographer in the story understood this. Yet, such an understanding did not stop her from throwing those images out on social media. 
Now, if I were to take one of the photographer's images and start sharing it willy-nilly, do you think she might be screaming that I hadn't reimbursed her – that I could not use her photograph? If she is a true professional, then the answer is yes. But that didn't stop her from sharing the image of this young couple. (And, while I'm sure this was an altruistic action, that she just wanted to share the pictures with the happy couple, I am just as sure she is quite content with the publicity it has engendered.)
There is a reason all these rules and regulations have been devised around privacy. Does anyone out there see the potential problems that arise with this sharing? The image goes viral and the subject has lost all control of the situation. Maybe the couple wanted to announce this happy event to their parents in their own way. Maybe their parents don't approve of the marriage and the couple planned on eloping without telling them. Maybe one or the other has changed his or her mind and now wants to call it off. Maybe one or the other is already married. Maybe one or the other is on the lam from the law or in the witness protection program. Or maybe they are just two private people who do not want this special moment to be shared with every Tom, Dick, and Harry who has an internet connection.
That is why you get a release.
Look, I know I've put a real negative spin on this. I have not done full research; I'm just basing this on a quick news piece. And no one involved seems to be upset. And the photographer probably has nothing but the best intentions. But social media has put a whole new spin on everything. And we continue to see blatant disregard for individual privacy. And it seems to have reached a point where we have to slap each other upside the head to really get our attention. And so, it seems that only by looking at the most negative aspects (should I say, by looking at all the potential risks) can we understand just how bad even the best intentions can turn.
So many lessons from such a seemingly innocent event:
1)      To everyone out there: Your image is never safe, no matter where you are. People are taking pictures of everything, and you can be the subject. And the idea of personal privacy is no longer understood. And the next thing you know, your image is part of the viral world. And you really didn't want that.
2)      People who produce things – artists, photographers, writers, programmers, business people, auditors (yes, even auditors) – depending on the circumstances, own the rights to what they produce. I don't have the time or space to discuss the differences in work-for-hire, working for an organization, and working for yourself. But it is worth your time to understand those differences, and understand what can be used when/where/how/etc.
3)      Just because a photographer or artist or everyday person captures an image, it doesn't mean they own the image of the individuals involved. Until those little sheets of paper are signed, those images are protected.
4)      And, in spite of all the trampling that is going on by individuals, businesses, and governments, we still have a right to privacy. We still own ourselves. And we have to diligently protect against the erosion of that ownership.
I'm not a real attorney. I don't even play one on television. (I barely play an auditor in real life any more.) So I may be wrong on all the legal ramifications I've been discussing. But I'm willing to bet I'm close.
And the audit lesson in all this: When you are looking at the work your organization is doing – anything that has to do with an individual's privacy, image ownership, and the way any of these are used – it is a good idea to make sure you, the department, your legal department, and anyone involved understands all the ramifications before they go blithely on, trampling individuals' rights and privileges.

Posted on Jul 24, 2013 by Mike Jacka

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  1. Mike,

    Interesting take on things. I think there is a significant grey area here, that covers the fact that these people were out in public, thus removing any expectation of privacy. I think (I don't play a lawyer on TV either) that until there is monetary profit (sale/licensing of the image) in play, the photographer is allowed to post such pictures without infringing on the subjects.

    Can you picture the nightmarish scenario where you would be legally liable any time you post pictures from your Disney visits and omit to blur out the faces of those in the background?

  1. Eelco,

    Notice how I made sure I put in the fact that I'm not a lawyer?  And that is because there is a LOT of grey area, and the courts are still battling this out.  In discussing the difference between personal and professional use of photos (including rights of individuals in those photos), part of the difference comes about based on the actual content.  For example, a person in the background of a shot may have a different set of rights than the actual object of the photo.  Further, it is all about the intent of use - casual versus professional.  In the example of the couple getting engaged, that gets even greyer.  Yes it is just a photo of a public event.  But that doesn't mean anyone can freely distribute that image.  And it is further complicated by the photographer's professional status.

    Even Disney is aware of the ramifications of people being in the background of public pictures.  You may have noticed that, very often, there are signs up warning people that they may be in the background of pictures and video that Disney is shooting and, if people don't want in those pictures, they should advise someone.  And building on that, there are cases where models had signed releases but they we able to successfully sue when that image was used in advertising.

    Of course, all of those are very clear cases of pictures being used for promotional purposes.  The less it has to do with advertising, etc., the more confusing it gets. And that is part of what I'm saying about the case above - even with the best of intentions, someone could interpret her actions (and the resulting publicity) as being promotion of her work.  And, at that point, the couple has become the object of her advertising.  (Continued in next comment - who put a character limit on these????)

  1. (And the rest of the reply)

    And I had about ten or twelve other really darn good points I was going to make.  But I realized it was becoming a broken record.  Because, at the heart of it, the courts are still duking this one out.  The materials I've seen on this (including some excellent presentations from IIA conferences by Dalia Saper) indicate that everyone is struggling to figure how best to apply current laws to the bizarre world of social media.

    The ultimate message, be I right or be I wrong, is for any organization to ensure legal is in there with you.  And, on a personal basis,  you probably don't have as much to worry about - until that cute video you shot goes viral and the guy in the background of your "Kitty Plays With Squirrels" video turns out to be someone who is running from the mob.


  1. Mike, I couldn't agree more with you, but where does the right of the individual to privacy stop and 'press freedom' start? In the UK we have just had a major inquiry into the ethics of the press (the Leveson inquiry) resulting from journalists hacking into mobile phone voice-mails. This is clearly illegal, but it highlighted the treatment of 'celebrities' by the press, including 'ordinary' people who found themselves unwittingly treated as celebrities. Supposing the young couple had been 'celebrities' would they have had to sign a release? Now they are celebrities, are photographers still required to get a release, or are they now subject to the 'freedom of the press'? You've raised some very interesting points, which lawyers will be dining out on for years...
  1. This is something I've wondered about for a while.  I'm starting to think that individual privacy is dead.  There are surveillance cameras everywhere.  Most of them are private but many are on web sites available for everyone to see.  Every cell phone is capable of shooting pictures and video, and it amazes me that someone is doing so when almost every news worthy event happened.  Facebook pictures and YouTube videos often are taken in public places.  I'm sure they're not getting the signatures from everyone around them.  The sites cover their legal backsides by requiring the person who is posting to declare they have the legal right to post the pictures/video.  But I'm 99.99% sure that few do.

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