privacy and publishing

So, this year the Tennesseean sponsored a pretty cool photo contest/project called Capture Music City. The idea is that they solicited local photographers to submit pictures of/from Nashville in various categories: Sports & Recreation, People, “Simply Nashville”, etc. These pictures were then displayed for voting, and the top winners were to be selected and published in a book, which was unveiled last week at a release party at Davis Kidd.

I think it was a pretty cool project done in good spirits. As I’ve mentioned before when I first signed up, you sometimes have to be wary of these sorts of “contests”, because it’s rarely as one-sided a blessing for the photographer as it may seem. After all, these organizations sponsoring the contests are getting a wealth of free pictures they can then use to make money. For the photographer, it has to be a decision of whether or not the resulting publicity is worth submitting for free or not. I decided it was, and the Tennessean was very good about crediting photographers for their work. So all in all a pretty good deal.

There is still one thing, however, that bothered me then and is still bothering me now: it doesn’t appear that they got model releases from some (possibly any) of the people in the pictures. I myself asked them how they planned on acquiring them and never really got a satisfactory answer, and indeed now that the book is published I am already running into people (in this photo, for example) who are surprised and confused to learn their picture has been published in a book for sale.

This is a somewhat complicated subject, because the details of whether or not it’s legal to sell a picture of someone are not at all set in stone or crystal clear. The wikipedia page covers it pretty well:

Publishing an identifiable photo of a person without a model release signed by that person can result in civil liability for whoever publishes the photograph.

Note that the photographer is typically not the publisher of the photograph, but sells the photograph to someone else to publish. Liability rests solely with the publisher, except under special conditions. It is typical for the photographer to obtain the model release because he is merely present at the time and can get it, but also because it gives him more opportunity to sell the photograph later to a party who wishes to publish it.

Note that the issue of model release forms and liability waivers is a legal area related to privacy and is separate from copyright.

This stands in pretty stark contradiction from the explanations I’ve gotten from the Tennessean. Their FAQ entry on the subject explains:

What about people photos and releases? Are famous people okay?

Photos of people in a public square are probably okay without any kind of release. Photos of family and friends are usually okay, but get their permission first. We probably can’t publish models and famous people in the book without their consent, but go ahead and post photos if you have them. Let us worry about the rights and such. If our lawyers feel we need to get in touch with the famous person or model, we will get ahold of you and make arrangements.

I am more than happy to let them worry about it (and the above wikipedia info about most jurisdictions seems to confirm that it is indeed their problem to worry about), but it doesn’t seem to me like they made any effort to get the release forms.

This is the e-mail exchange I had with them before the publication of the book and after it occurred to me that they might need to do this:

On May 13, 2008, at 7:25 AM, [email protected] wrote:

From: [email protected]
Project: Capture Music City

If you guys select pictures of people, how do you plan on getting model release forms from them to use their picture in the book?

The response I got from someone at pediment publishing:

Hi Chris,

We leave it up to the photographer to decide if the photo is okay to publish. We are trusting your interpretation of rights (see: for some general guidelines). If you submit the photo, you are telling us you believe it’s okay to publish. If you don’t feel comfortable, or are unsure, then it’s better to err on the safe side and not submit it.

By the way, I love your photos! Keep ‘em coming!

I followed up with a standard IANAL disclaimer and then the explanation as I’ve offered above about how I don’t think that’s exactly right – the URL she links to concerns the legality of taking pictures, not publishing them – but I never got a response.

I am not raising this because I have any particular axe to grind – nor do I think that the capture music city book represents a cash cow that is taking advantage of poor models, but I do think it’s interesting and worth discussing.

Do I think that the Tennessean/Pediment publishing went out of their way to screw unwitting models? No.

Do I think that it’s worth anyone in the book to sue someone? No. (Especially given the army of lawyers that Gannett, et al. likely has at their disposal versus the relative merit.)

Do I think that they played loose and fast with privacy law out of laziness/convenience to avoid getting the model release forms? Yes, and I think that principle is important.