Wednesday, 8 June 2011

Consent to being photographed

What can a photographer do with an image of a well-known person? Or even someone who's not well known - who may still be what in modern parlance is called a "celebrity". A recent case from the United States sheds some light on the question - though the judgment is remarkable more for the care with which the court circumscribed its reach than the actual finding.

This is the district court for the Central District of California's decision Shirley Jones v Corbis Corporation (Case No 10-8668 SVW (CW)) (hat tip to Bob Tarantino of Heenan Blaikie in Toronto who tipped his hat in turn to THR, Esq). Shirley Jones, who was in the 1970s TV show The Partridge Family (which I had the great good fortune to escape ever seeing) not to mention films like Oklahoma!, Carousel, and Elmer Gantry , took exception to the use of photos of her in "red carpet" situations. She claimed her right of publicity was being infringed by Corbis (a stock photography agency, in case you haven't had a run-in with them or otherwise heard of them: it was founded, and is owned, by one Bill Gates) when they showed samples of images of her on their websites.

The court rejected her claims. If you show a celebrity a red carpet and a few photographers, he or she is likely to start striking poses: they know what is expected of them, and what will happen to the results. That's not exactly what the court said, but I think it's a fair paraphrase. Thereafter, the images are sold by the photographers - why else would they bother taking them? - and showing them in the manner about which she complained, even through the medium of Corbis, was entirely consistent with the implied consent given by Ms Jones. There was no evidence to support her claim that the consent was personal to the individual photographers.

At some "red carpet" events, notices are posted stating that the celebrities being exposed on the carpet consent to photos and moving images being recorded and reused, which not only kicks any argument like Ms Jones's into touch for those events but also shows pretty clearly what custom and practice is. Indeed it was not disputed that she consented to the photos being taken, and to their being sold. Her actions, and the context in which she performed them, added up to consent to everything that subsequently happened to the photos. What I don't see in the judgment, and which would be interesting to know, is when the photos were taken - I assume they date from the period of recent history in which this way of dealing with the images would have been commonplace. Had they been images from an earlier era, pre-digital, pre-Corbis, the extent of her implied consent might have been very different.

Although this is a decision of a US Federal court on US law (common law and statutory rights of privacy were pleased, though I am not sure after quickly scanning the judgment which statute is invoked), there are lessons for photographers - and for celebrities, and event organisers - elsewhere, even if (as in the UK) privacy rights are much less well-developed. Put up one of those notices, to start with, so there is the least possible doubt about what's going on. Photographers should be able to rely on the subject's implied consent just because they are there, and if the celebrity is striking poses for the photographers so much the better. Beware, however, if they are hiding their faces, or instructing photographers not to take pictures: that would probably override any implied consent, though you're more unlikely to encounter that sort of reaction on a red carpet. It's a rather special environment, and special rules apply which would not apply if you encounter the celebrity on the street.

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