Can I Legally Publish My Photo?

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If you take a photograph in a public place, and then publish it commercially, can the people in the photo successfully sue? Bcllibrary asked the Answer Line forum.

That's a complex issue, with quite a few shades of grey. I talked with technology lawyer Tate Stickles to get a handle on the issues involved. "Any picture you take, you own the copyright to," Stickles told me, "but it gets muddled when you put it to commercial use."

If you're standing on public property, you have a right to take a photo. And unless someone else is paying you to take that photo, you own the copyright. That includes the right to post the photo on a site like Flickr, where everyone can see it but it doesn't bring you money.

The problems come when you start making money off of it. For instance, if you sell it to a newspaper or other news source, that's generally considered fair use. The subject (the person in the photo) has no rights to it.

On the other hand, if you use their photo in an advertisement without their permission, they most certainly can sue you. And in my opinion, they should.

Things get trickier if you're selling the photograph as art. Can you sell your photo to a calendar publisher or an art book without risking a lawsuit? Maybe, but maybe not. The law isn't entirely clear on that one.

And what about posting it on your own blog? "It depends on the blog," warns Stickles. "What sort of blog? Do you have linked ads? All that effects if it's a commercial activity."

To make things more complicated, the laws differ from state to state, and it's not even clear which state's law applies. Is it the state in which the photo was taken? Where the subject lives? Where the photo was published? All three?

"Unfortunately," warns Stickles, "there's not a crystal clear answer to your question."

Stickles recommends asking the people in your photo to sign a model release. It may not be necessary, but it's the safest practice. For more on model releases, including samples, visit this site and this one.

You'll find additional, useful information on the subject here and here. And you can read the original forum discussion here.

Add your comments to this article below. If you have other tech questions, email them to me at answer@pcworld.com, or post them to a community of helpful folks on the PCW Answer Line forum.

This story, "Can I Legally Publish My Photo?" was originally published by PCWorld.

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