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[OM] Re: Walking and shooting in Brooklyn - OT equipment

Subject: [OM] Re: Walking and shooting in Brooklyn - OT equipment
From: Chuck Norcutt <chucknorcutt@xxxxxxxxxxxxxxxx>
Date: Sat, 10 Nov 2007 17:47:05 -0500
But you are more definitive in your statements than any lawyer would 
ever be.  :-)

But one question.  Why is it that the person's image appearing in an 
illutration for an article in the magazine rather than an advertisement 
is not considered commercial use promoting the magazine rather than 
another product?

Chuck Norcutt

Andrew Fildes wrote:
> No expectation of privacy on a public street - at all.
> Privacy is not the issue here.
> Cover of a magazine - commercial use and not acceptable without a  
> release.
> Inside with story (i.e. not in an ad) no problem.
> 'Malice' is a test for a tort as I remember - it is a way of making  
> something actionable if it is normally not so. If I can prove that  
> you did something maliciously and that I have suffered a damage, then  
> I can take action. There was no malice in the magazine's action so  
> the only recourse for the 'victim' is that it was an unauthorised  
> commercial use involving a recognisable image of the person..
> 
> 'Reasonable expectation of privacy' is a whole other can of worms. If  
> you perform an act in a public place, you have zero expectation of  
> privacy, whoever you are. If in a private place but in public view,  
> the same. If I stand on my balcony and photograph my neighbor  
> sunbathing when she is in full view, although she is in her own yard  
> - no legal problem in terms of privacy. Of course, I may have other  
> than legal problems when her husband finds out but it is incumbent  
> upon her to be aware that she is potentially overlooked by casual  
> onlookers who have made no special effort to see her. In order to  
> violate someone's privacy I have to make some effort to invade it.
> What your eye can reasonably see, your camera can record.
> 
> If we didn't spend so much time abusing lawyers on this list, we  
> might have had one here who could clarify this issue from a position  
> of expertise.
> Andrew Fildes
> afildes@xxxxxxxxxxxxx
> 
> 
> 
> On 11/11/2007, at 9:07 AM, Bob Whitmire wrote:
> 
>> You may be right. It was a long time ago and some of the seminars
>> were pretty boring. But I think one germane issue was the fact this
>> fellow was not a public figure. With public figures, malice really
>> comes into play. Private figures singled out as illustrations on the
>> covers of major daily newspaper magazines have a smidge more
>> entitlement to privacy.
> 
> 
> 
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