Re: Re: Re: Re: Re: Re: Another worthless Baritone player


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Posted by Rick Denney on November 29, 2002 at 17:40:59:

In Reply to: Re: Re: Re: Re: Re: Another worthless Baritone player posted by Kenneth Sloan on November 28, 2002 at 14:00:00:

If you knew the answer, then why did you ask?

As it happens, the formal pictures in a yearbook are often accompanied by a model release buried in the fine print of the transaction. The candid photos are probably considered news photography, which enjoys some greater flexibility than do stock photos, but only when the included persons are part of the story being reported, and the story is of relevant news value. But reusing the photo in a way not intended or allowed by the yearbook publisher would not be covered by any agreement, explicit or not, that the publisher would have with the person being depicted. For one thing, the subject's agreement is with the photographer (and those acting with his permission or on his behalf, which would include the publisher), not with someone who copies the image. Thus, the student would have had to have his own consent from the band director to portray him in public, even favorably. Private people have a right to be left alone, which is separate from copyrights and libel considerations. That's why I mentioned the model release.

There are also issues of whether the subsequent use is a distortion of the original use. The classic cases are associated with adding cigarettes to the hands of non-smokers in stock photography, which depend on the specific language in the model release, which must give consent to subsequent uses even though they are distorted and even though they may result in ridicule of the model. And the model release can be held ineffective if any one of the photographer's requirements are not met. It seems to me unlikely that the model release used by the yearbook, even if it is explicit, would include language necessary to allow an offensive subsequent use, even if they granted the right to copy. Certainly no oral or implied agreement would allow it. The use of the photograph must not go beyond the uses allowed in the model release.

This is separate from the issue of libel. As I'm sure you know, a libel is that which is printed and published, which injures the reputation of another by bringing him into ridicule, hatred or contempt. I suspect that the student's web page falls into that category, as long as a web page is considered publication (which it is).

Source: Photography and the Law, 5th Edition, by George Chernoff and Hershel B. Sarbin, Amphoto, 1978.

As to having enough facts, we hardly have any facts other than those surrounding the lawsuit by the student and the subsequent finding of the court. I didn't suggest that the band director would prevail--that would be subject to the finding of fact in his court case. I did suggest that the band director, if he was offended enough to seek punishment, should have sued for invasion of privacy and libel, both of which would have had to stand the test of fact, rather than seek punishment from the school for activities undertaken away from school.

Rick "a sometimes professional photographer whose work has appeared in a national publication as recently as two months ago" Denney


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