We've discussed the legal/ethical aspect of photographing people in public places without their permission. Here's another not-so-hypothetical situation/brain teaser and legal question:

Within a street photo you've taken appears an ad (on a bus, a subway shelter, etc.). The ad is an intrinsic element of the photo, is recognizable and could not be cropped out (even if you are not averse to cropping). Can the agency that created the ad or the client they created the ad for sue you for appropriating their creative efforts if you publish, exhibit or otherwise publicly display the photo?

Mason

-- Mason Resnick (bwworld@mindspring.com), July 15, 1998

Answers

Street Legal Question

First, I'm not a lawyer...this is just a personal opinion.It seems to me that if the ad is an intirinsic part of the scene, if you do not use it in a slanderous, libelous, or other derogatory manner; and if you are not using your photo to promote or advertise a competitor, or to promote some highly contentious issue (e.g. abortion), the advertiser has no legal basis for complaint. They posted the ad in a public place, with the intention that it be seen by as many people as possible. In fact, considering the lengths and dollars to which advertisers will go to get their product mentioned or shown in a public formum such as a movie, I think many would thank you for using the photo. Also, if this was done for a client, and you have doubts, mention it and let the client's lawyers check it out. Maybe in this litigatious society of ours, this is too simple a concept. For some, if it exists, it can be sued, and the attention it gets is the reward for the plaintiff. I would take the approach that I don't have enough for them to collect if they do sue, for it to be worth their while. Richard Newman

-- Richard Newman (rnewman@snip.net), July 17, 1998.

I am not a lawyer either, but I think Richard is wrong on the legal question. Surely this is a simple matter of copyright? The advert is copyright, and you are copying it, and that's illegal. If you make money out of it, then you are making money from soneone else's efforts, so they have grounds for complaint.

But I agree with Richard that if you are not being derogatory, it would probably be OK, and might even be welcomed by the advertiser. They would probably ask themselves what effect your photograph would have: would it help publicise their product, in a positive way? If so, I guess they would be happy. If not, they might either leave it (on the grounds that any publicity is good publicity), or they might use the copyright to stop you publishing.

-- Alan Gibson (gibson.al@mail.dec.com), July 20, 1998.

the inclusion of an ad within a photo seems to me a fairly straightforward example of "fair use" under the copyright law. fair use has been widely upheld, by no less an authority than the supreme court (acuff-rose vs 2 live crew). here's the fair use clause of the copyright law.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

of course, as for trademarked logos and the like, there could possibly be room for legal action against a photographer, but i would think that the shot would have to have some defamatory content to rile most corporations. interesting question though.

-- jeremy beckman (5beckmans@lasercom.net), August 01, 1998.