Feb 26 2008
Photos - editorial vs. commercial use
Some months back I sold a series of photos to a national news organization. The photos covered a large festival in a local resort town. I sold around 40 photos and 3 or 4 were used in print and all made available in an online gallery.
Last week I received an email from a journalist informing me that she would be using several of the photos in a book - on a totally unrelated subject. In the original agreement rights were transferred but limited to “editorial use”, “commercial use” being specifically prohibited. In my naievity I imagined that “editorial use” meant the photos could only be used to accompany articles or features concerning the event at which they were captured, or in some way at least tangentially connected to it .
I learned my lesson cheaply. Consider this:
The photograph above was taken by artist Philip Lorca diCorcia in Times Square.
“DiCorcia attached an elaborate system of strobe lights to construction scaffolding, and aimed them and his camera toward a fixed point on the sidewalk. From 20 feet away, he operated the camera’s shutter and the lights, collecting images of passers-by - including Nussenzweig - without their knowledge. Nussenzweig’s photograph was exhibited at the Pace/MacGill Gallery from September 6, 2001 through October 13, 2001, and published in a book entitled Heads, co-published by Pace/MacGill. DiCorcia created ten limited edition prints of the photograph; no more will be printed. The limited edition prints were sold for USD $20,000-30,000 each.” wiki
Nussenzweig became aware of the photo in 2005 and sued for invasion of privacy and complained that the photograph violated his constitutional right to practice his religion, which prohibits the use of graven images.
Nussenzweig lost, with the court accepting that DiCorca’s use was not commercial, and was therefore protected by the first amendment.
Commercial use in the context of images (photos and video) is limited their use in advertising and promotional material - every other use is non-commercial.
I did a bit of googlin on the case and a lot of the arguments were centered around the idea of freedom of expression for artists. I wonder how they define art these days? The idea that someone can take a photo of you without your knowledge and then sell prints for 100s of thousands without compensating you or even asking permission is contrary to everything I’ve learned about including people in work you sell.
Wait, if I sell a photo of you for $30,000, that is not a commercial use of your image?
Because you’re not appearing to endorse a container of yogurt or a basketball shoe?
Hmm.
I have to agree with Mindy and Ron. That case relates to works of art in NYC. Those rules don’t apply to just taking photos on the street.
You have to get permission before using someone’s picture in any sort of publication unless its news related.
Yes the case did involve fine art and the appeal was dismissed because the complaint was not made within 1 year of publicatio, so the ruling may have limited applicability
But if you have access to the Chuck Fadely’s newsvideographer yahoo group check the two recent threads “Selling news photos without compensation or consent”.
In researching the issue:
Newsworthiness trumps an individuals right to privacy and rights of publicity.
The NYTimes (amongst others) claims it never needs releases for any photos/videos it chooses to run - they are all “newsworthy” by default. Why else would a news organization use them?
The “editorial use” umbrella can be stretched to cover everything except direct advertising.
Newspapers throughout the US are aggressively marketing “news” photos in a desperate bid to shore up declining revenues
There is afaik no limit as to what they can sell the photos for. Selling a photo for $5million is no more or less commercial than selling it for $5.