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Old 02-07-2013, 09:46 PM   #1
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USE OF PHOTOS IN A BOOK

What am I missing? Perpetually, there are less than flattering photos on the cover of rag magazines showing Hollywood bimbos in bikinis with more cellulite than blubber on a blue whale. No one can convince me those bimbos sign releases for the photographer or the publisher. Is that considered "editorial" purposes? Am I wrong, that releases are needed for promotion, or advertising purposes, but not if the photo is part of a book, magazine, or newspaper, and not part of promotion or advertising?

If a photo is included in a book, and the same photo is used on the cover of the book, does the use on the cover require a release, but the same photo in the book does not? If the answer to that question is "Yes", why are the rag magazine cover photos published without a release?

Help me understand. Please!
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Old 02-07-2013, 09:53 PM   #2
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Maybe no one can convince you, but all photos require releases, whether they're inside the book or on the cover. I should know; my books are illustrated.

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Old 02-07-2013, 10:05 PM   #3
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Maybe no one can convince you, but all photos require releases, whether they're inside the book or on the cover. I should know; my books are illustrated.

Well, that makes it succinct, but how do you explain the Enquirer newspaper cover photos, that well known personalities would never sign a release for?

Yes, I am not convinced all photos of individuals within a book, require a release. Dead people can not sign anything. Their estate may be closed. Doesn't "Editorial" purposes come into play?

Maybe others can enlighten.
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Old 02-07-2013, 10:17 PM   #4
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Sat Nam! (literally "Truth Name"--a Sikh greeting)

In the case of dead people, it's the estate. And if it's not a celeb, I don't think it would matter, as privacy would be no issue.

I have no opinion about the Enquirer, except maybe to ask why you want to use them as an example?

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Old 02-07-2013, 11:02 PM   #5
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I have no opinion about the Enquirer, except maybe to ask why you want to use them as an example?


Because the Enquirer is a publication everyone can relate to, and often has a photo on the cover without a release.
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Old 02-07-2013, 11:33 PM   #6
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They are probably walking the "fair use" line as it's editorial ("news" reporting).
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Old 02-07-2013, 11:39 PM   #7
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A celebrity is a public figure and are not subjected to the same privacy laws as John Q Citizen.

The Enquirer, no matter what we think of it, depicts itself as a news journal and is not required to get a release.

If you use photos in a book, or on the cover, there are several factors you have to consider. You'll need a release from the copyright holder of the picture and you have to get a release from any persons included in the picture if the copyright holder does not include that in his release. This is where the orphan copy right law is very tricky because the person using the picture has to make good faith effort to track down the copy right holder.

There are sites that allow you to download pictures for personal use, but if you use the pictures, or artwork in any manner for profit, you generally have to purchase the rights to those pictures, and the rights have to spell out how you can use those pictures, such as ebooks, print books, international, posters, billboards, etc.

Or so is my understanding...
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Old 02-07-2013, 11:49 PM   #8
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Quote:
Originally Posted by kousa View Post
What am I missing? Perpetually, there are less than flattering photos on the cover of rag magazines showing Hollywood bimbos in bikinis with more cellulite than blubber on a blue whale. No one can convince me those bimbos sign releases for the photographer or the publisher. Is that considered "editorial" purposes? Am I wrong, that releases are needed for promotion, or advertising purposes, but not if the photo is part of a book, magazine, or newspaper, and not part of promotion or advertising?

If a photo is included in a book, and the same photo is used on the cover of the book, does the use on the cover require a release, but the same photo in the book does not? If the answer to that question is "Yes", why are the rag magazine cover photos published without a release?

Help me understand. Please!
No, releases are needed if photos are published in a book, magazine, etc.

I think you're mixing up a couple of things.

All the photos in the tabloids of celebrities with no makeup, cellulite on display, wandering about scandalously in sweats doing the marketing, have signed releases - from the photographer and/or agency who owns the rights to the photo.

Those photos are taken in public.

I believe you're asking about a release like you'd need to sign if you were to pose for a photo, giving the photographer the right to use the image in an advertisement in return for whatever payment. That's one release. Then the photographer, who took and owns the image, would sign something allowing the magazine or whatever bought the photo from him or her to use it. If the photographer works for an agency, there's an agreement licensing the photos to the agency, etc.

If you, or George Clooney, are wandering about in public, you don't have the same expectation of privacy you do in other settings. Hence a photographer can snap a photo of him out getting coffee and sell it without obtaining permission from Clooney. Same as your local news can set up a man-on-the-street shot and broadcast, showing anyone walking behind the reporter, without obtaining permission from them. It's a bit different in some situations, like shooting a television show for entertainment not in any way news (in which case some crowd things may use blanket 'if you cross this line you are agreeing' type permissions), but in general.
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Old 02-08-2013, 04:11 AM   #9
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Yes, I understand photos where the image is posed is not the same as one taken in the public domain --- that the former requires a release. But the latter does not require a release for use in a book. Is that everyone's understanding?

But the latter would require a release if used to promote a product, service or idea?
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Old 02-08-2013, 05:19 AM   #10
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A picture of a recognizable person needs a release unless you have some defense you would use in court if they sued you. Me, I just get the release. Being sued is expensive, often even if you eventually win.
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Old 02-08-2013, 05:31 AM   #11
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Old 02-08-2013, 05:34 AM   #12
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That's not what "public domain" means.

It would help a lot if you could pose an example, instead of asking very generic questions. What, exactly, are you trying to publish?
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Old 02-08-2013, 07:55 AM   #13
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Originally Posted by kousa View Post
Yes, I understand photos where the image is posed is not the same as one taken in the public domain --- that the former requires a release. But the latter does not require a release for use in a book. Is that everyone's understanding?

But the latter would require a release if used to promote a product, service or idea?
As jw said, you're misusing 'public domain.'

If you mean a photo of, say, George Clooney taken while he was walking down a public street, the photo probably doesn't require Clooney's release to use, UNLESS you're using it to promote your product (which may include a book/inclusion in a book).

However, the use of that photo WOULD require a release from the rights-holder of the photo, which generally requires paying for the use of said photo.

Also as above, an example of what you're asking specifically may help clarify.
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Old 02-09-2013, 01:05 AM   #14
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Quote:
Originally Posted by kousa
Yes, I understand photos where the image is posed is not the same as one taken in the public domain --- that the former requires a release. But the latter does not require a release for use in a book. Is that everyone's understanding?

But the latter would require a release if used to promote a product, service or idea?




Yea, I goofed by using the term public domain, when I should have just said 'public'. It is my understanding that public domain refers to images availble for use free of restrictions, because the image is in the public domain, but I think one still would not be able to promote a service, idea, or product with the image. I have no idea why I stuck the word 'domain' in that sentence.

Cornflake, you raised the point that including a photo taken of someone while in public would require a release before including in a book. I fail to understand why that is required. Insertion in a book is not promoting the book.
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Old 02-09-2013, 01:57 AM   #15
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Quote:
Originally Posted by kousa View Post
Quote:
Originally Posted by kousa
Yes, I understand photos where the image is posed is not the same as one taken in the public domain --- that the former requires a release. But the latter does not require a release for use in a book. Is that everyone's understanding?

But the latter would require a release if used to promote a product, service or idea?




Yea, I goofed by using the term public domain, when I should have just said 'public'. It is my understanding that public domain refers to images availble for use free of restrictions, because the image is in the public domain, but I think one still would not be able to promote a service, idea, or product with the image. I have no idea why I stuck the word 'domain' in that sentence.

Cornflake, you raised the point that including a photo taken of someone while in public would require a release before including in a book. I fail to understand why that is required. Insertion in a book is not promoting the book.
I said two things - first, you absolutely need a release from the rights-holder (whomever took the photo or owns the rights to the photo). Second, you may or may not need a release from the subject, depending. Yes, inclusion in a book may be considered a commercial or promotional use. I'm not sure why you keep saying it'd be in a book, like that'd negate the possibility it could be seen that way. The photos in a book are part of the draw of a book.
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Old 02-09-2013, 07:12 PM   #16
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Thanks to everyone for their thoughts. I am well aware that the owner of the photo must give permission. My concern revolves around releases from individuals in a photo, for use in a book. Some of you believe that a release must be given by those individuals, but I am not sure that is the case. (What release is given by the faces in a crowd during a televised Macy's Day Parade? What release is given from people that are stopped on Jay Leno's Jaywalking?)

Despite searching numerous websites to answer basic questions regarding when releases from individuals in a image are required to use a photo in a book, nailing down absolutes, turned out to be next to impossible, primarily because of less than definitive wording in the sentence structures. Even a website, of an attorney with a specialty in copyrights, refused to adequately define terms such as "Commercial" vs. "Editorial", when a decision on photo releases from the people in the images are required.

But I did find the following website:
http://www.photoaim.com/gen599.html

Is this guy wrong? If so, where and how. See his wording below.

COMMERCIAL STOCK PHOTOGRAPHY VS. EDITORIAL STOCK PHOTOGRAPHY
`````````````````````````````````````````````````` `````````````````````````````````````````````````` ``````````
What's The Difference?
The choice is yours...

The fast lane of commercial stock photography or the more relaxed lane of editorial stock photography...



The Difference:



Commercial stock photographs are used in ads, promotional brochures, posters, etc. that advertise and/or endorse products or services. "Musts" for these images usually include: healthy, wholesome models; politically correct subject matter; this year's trends, hues and colors. These photos frequently are taken on assignment, or they come from files of stock photos that depict standard catalog images: waterfalls, sunsets, striking scenics, clouds, contrived family settings like a young couple picnicking in a city park or healthy-looking senior citizens cycling through colorful autumn leaves. Model releases are required for commercial stock photos, since their purpose is to endorse or help sell something.



Editorial stock photos are used as illustrations in books, magazines, informational periodicals and electronic media, educational materials, etc. Editorial stock photos frequently include people, depicting them as they are in real-life situations, not the stereotypical set-ups of commercial stock. Through their editorial statement these photos are inherently more unique and content-specific than the more generic commercial stock photos. Editorial buyers need "believable" pictures, not manufactured images. Model releases are not needed, in most cases, for editorial photos, since their purpose is to educate and inform.



Thanks for your comments.
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Old 02-09-2013, 08:14 PM   #17
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Here is a different opinion from the American Society of Media Photographers:

http://asmp.org/tutorials/property-a...l#.URZ761rXiA0

I'd LOVE it if I didn't have to get model releases. The photos in my book are from the private archives of a celebrity in a foreign country. Even if I don't need them for his country, to have the book sold here, my understanding is that I need them for here.

My guess is it will be up to the publisher. If the publisher requires a model release, then a model release is needed. If not, it's up to the writer as to whether s/he wants to take the chance.
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Old 02-10-2013, 01:14 AM   #18
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Quote:
Originally Posted by kousa View Post
Thanks to everyone for their thoughts. I am well aware that the owner of the photo must give permission. My concern revolves around releases from individuals in a photo, for use in a book. Some of you believe that a release must be given by those individuals, but I am not sure that is the case. (What release is given by the faces in a crowd during a televised Macy's Day Parade? What release is given from people that are stopped on Jay Leno's Jaywalking?)

Despite searching numerous websites to answer basic questions regarding when releases from individuals in a image are required to use a photo in a book, nailing down absolutes, turned out to be next to impossible, primarily because of less than definitive wording in the sentence structures. Even a website, of an attorney with a specialty in copyrights, refused to adequately define terms such as "Commercial" vs. "Editorial", when a decision on photo releases from the people in the images are required.

But I did find the following website:
http://www.photoaim.com/gen599.html

Is this guy wrong? If so, where and how. See his wording below.

COMMERCIAL STOCK PHOTOGRAPHY VS. EDITORIAL STOCK PHOTOGRAPHY
`````````````````````````````````````````````````` `````````````````````````````````````````````````` ``````````
What's The Difference?
The choice is yours...

The fast lane of commercial stock photography or the more relaxed lane of editorial stock photography...



The Difference:



Commercial stock photographs are used in ads, promotional brochures, posters, etc. that advertise and/or endorse products or services. "Musts" for these images usually include: healthy, wholesome models; politically correct subject matter; this year's trends, hues and colors. These photos frequently are taken on assignment, or they come from files of stock photos that depict standard catalog images: waterfalls, sunsets, striking scenics, clouds, contrived family settings like a young couple picnicking in a city park or healthy-looking senior citizens cycling through colorful autumn leaves. Model releases are required for commercial stock photos, since their purpose is to endorse or help sell something.



Editorial stock photos are used as illustrations in books, magazines, informational periodicals and electronic media, educational materials, etc. Editorial stock photos frequently include people, depicting them as they are in real-life situations, not the stereotypical set-ups of commercial stock. Through their editorial statement these photos are inherently more unique and content-specific than the more generic commercial stock photos. Editorial buyers need "believable" pictures, not manufactured images. Model releases are not needed, in most cases, for editorial photos, since their purpose is to educate and inform.



Thanks for your comments.
No, releases aren't needed for crowd shots of the parade-viewers, that's an editorial concern, the parade happening is news.

The people on Leno absolutely sign comprehensive releases, or you wouldn't be seeing them. That's not an editorial concern, in any way, shape or form.

Your book is not an editorial concern, it's commercial.
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Old 02-10-2013, 04:31 AM   #19
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No, releases aren't needed for crowd shots of the parade-viewers, that's an editorial concern, the parade happening is news.

The people on Leno absolutely sign comprehensive releases, or you wouldn't be seeing them. That's not an editorial concern, in any way, shape or form.

Your book is not an editorial concern, it's commercial.
The use of an image determines whether it is commercial or editorial, so if the camera shot of the crowd at a Macy Day parade is by the news crew for airing, that is news. But a camera shot by NBC, because they are broadcasting the entire or most of the parade, that is entertainment --- not news. Do you think NBC receives releases of crowd shots, when they are broadcasting the entire parade?

So, are you claiming the guy who presented the definition of 'editorial' and 'commercial' is wrong? He claims commercial use of an image is when it is used for advertising, or promoting an idea, product, or service. You disagree?
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Old 02-10-2013, 04:52 AM   #20
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Your book is commercial; if the picture depicts recognizable people you need a model release. Full stop.

The stock description is not wrong, per se. but you are not interpreting it correctly. To be editorial the use has to be editorial. Some books are editorial (e.g. a book on the war in Rwanda, showing a candid picture of a combat scene in Rwanda). Nothing you have said suggests that yours is.
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Old 02-10-2013, 05:35 AM   #21
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Mods, mayhaps it's possible to merge these two threads on the same subject?
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Old 02-10-2013, 06:29 AM   #22
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Your book is commercial; if the picture depicts recognizable people you need a model release. Full stop.

The stock description is not wrong, per se. but you are not interpreting it correctly. To be editorial the use has to be editorial. Some books are editorial (e.g. a book on the war in Rwanda, showing a candid picture of a combat scene in Rwanda). Nothing you have said suggests that yours is.
Thanks. But if what you state is accurate, how could the law differentiate between a book that is editorial and one that is commercial. Outside of books that primarily entertain, do not all the others inform?

If the guy that gave us the definition of editorial and commercial believed that some books are editorial and some are commercial, wouldn't he have included 'books' in his definition of photos used for commercial purposes? He did not. He merely defined photos for commercial purposes as those used to advertise, or promote a product, service or idea. Thus no mention of book, magazine, or newspaper.

Thanks for your thoughts. Just trying to nail this down.
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Old 02-10-2013, 08:01 PM   #23
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You are using a random article online as the be-all, end-all definition and trying to apply that vague description to your very specific situation. You need to consult an attorney or talk with your publisher - or else explain your situation in more detail.
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Old 02-11-2013, 03:59 AM   #24
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It is the job of the author and their lawyer to decide if the book is editorial. If you are not sure, it probably isn't

It sounds like you have a picture you really want to use, but sadly you can't. This is not uncommon. Time to move on
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Old 02-12-2013, 07:08 AM   #25
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Having done more research on the subject than I care to admit, part of the lack of clarity among the websites I have read, is that the law is poorly worded. (Now why would that be surprising, since lawyers want every legal document to be ambiguous, since that generates more court cases.)

Additionally, there is not uniformity on the law among the states.

I did find another website that was kind enough to CLEARLY word the law. (in at least on state) That information is below.

I did find a New York case that overruled a precedent from a prior court case that had been used by courts for about one hundred years. The recent cases ruled that book covers are considered promotional, thus subject to the 'commercial' uses of photos laws.

Interestingly, a similar case won by Amazon, ruled that using a book cover photo on the Amazon website to display a book, was not any different than a book cover in a book store, thus it was NOT promotional, and thus NOT 'commercial', and thus NOT subject to a model release, that IS required when an image is used to promote, or advertise a product, service, or idea.

Front Page News
http://www.photosource.com/psn_full....adlines&id=507




Book covers…Do They Require A Release?



Advance Notes: When can a picture be published without requiring a person’s consent? A one-sentence answer would be, "when it’s not being used to advertise or endorse a product or other commercial entity.” If the picture is informing and educating the public, such as in a texbook, newspaper, TV documentary, etc. it generally is designated an editorial photo, which does not require a model release. But not all is conveniently clear and black and white when it comes to the requirement of model releases. Consider just one subject area, Book covers:




Photographer Question: “I have a pretty good understanding of the model/property release issue with editorial stock, but I do have a question. If a photo is used for a magazine/book cover, wouldn't that be considered promotional and require a model/property release?”

- - - - - - - - - - - - - - -

PhotoSource International Answer: Book and magazine covers have a way of becoming “quasi advertisements,” when they do double-duty of “hyping” the book or magazine when placed on a newsstand or in a catalog or even in an ad in, say, The New Yorker magazine.

The courts, however, have almost always considered book and magazine covers as editorial in nature, and therefore not subject to the regulations that are applied to advertising photography.

The same has generally been true for photos in gallery shows or exhibits, where ‘editorial-type’ photos, taken in public places, are exhibited. The courts so far have ruled that even if such photos were sold by the photographer, the displays or exhibits were regarded as fine art use, not commercial use. While the pictures weren’t used as ‘editorial use,’ they also were not used to advertise or endorse a product.

One of the earliest cases addressing this was back in the early part of the last century, when a hod carrier on the New York waterfront, sued a local magazine for using his picture on their front cover. The magazine won the suit, and the case is often used as the example (precedent) for similar suits.

The famous Arrington case in the early ‘80’s is another significant case concerning this question. It points up how in some cases the use of a picture might be editorial in nature, but might be embarrassing to the person being photographed. Mr. Arrington, a black man, sued the New York Times for publishing a photograph of him. The Court judged that the photograph, taken in a public place, and used to illustrate an article on the upward mobility of blacks, was not considered detrimental, because Arrington’s name was not used, and the photograph was published for illustrative, not commercial purposes. The law subsequently was amended to include protection for freelancers supplying photographs for use as news. (1983) You can look up this case at: Arrington v. New York Times, 433 N.Y.S.2d 164 (N.Y. App. Div. 1980), modified, 55 N.Y.2d 433 (1982), cert. denied, 459 U.S. 1146 (1983).
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