[Leica] When is a release required

["Robert Rose" <rjr@usip.com>]

Adam,

The issue of when a release is required is dependent upon the law in your jurisdiction and country, I can only speak generally.  I am not expert in the law of any jurisdiction other than California.

While the terminology is not used in legal opinions, a distinction does exist between "editorial" use and "commercial" use, and it is very important whether the subject had a reasonable expectation that he or she was in a private area.  These factors interrelate to some extent.

By "editorial" I mean a use where the photo is being used for its own sake, and not to sell something extrinsic.  For example, suppose I wanted to take pictures of homeless people walking down an open street in the middle of the day.   I put the images into a book, which I sold as images of homeless people, and I also sold individual pictures, and I had one of the images published in a magazine.  No release needed.

Now, suppose that one of the images was used to sell mattresses (e.g., "Here is someone who didn't sleep on our XYZ!"  I know, tacky, but it makes the point).  Release needed.

Or, suppose that the homeless person had erected a shack in a park, and while he was inside with the flaps closed, I intruded and took a quick shot.  Release needed.

Now, turning to your example, you pose a tough case.  If this was California, I would say it depends, as you saw, upon your use of the image, and the expectation of the people as to privacy.  In this case, I think they would say that they expected that their work area was not visible to the outside.  Maybe there is a difference between the area near the cash register, and the area near the grills?  (The fact it is a private business is of some interest, but not determinative.  Note that a "private stadium" is very public.)  Maybe anything you could photograph while standing where any member of the public would stand would be okay, if you used a 50mm or wider lens, but using a 200mm lens would be effectively letting you "go" into a private area that the public was not allowed in.  Get the picture?

So, like a good lawyer, I have given you no answer.  But, if you mail many unmarked bills I will expound at greater length.  :-)

Bob Rose
www.usip.com

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Date: Mon, 31 Jan 2000 18:37:57 -0800
From: Adam Bridge <>
Subject: [Leica] When is a release required

The discussion about shooting the bar raises a question to which I don't know
the answer:

When is a release required? The other night I was in Murder Burger waiting for
an order and dying for my camera to photograph the goings-on behind the counter:
visually rich environment, wonderfully complex and textured. As I stood there
waiting I wondered: what's my responsibility to the people I photograph?