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If I take a photo of a stranger in public, can I sell it?

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  • If I take a photo of a stranger in public, can I sell it?

    This one has been causing me a headache.

    If (in Australia) I take a photo of someone in public (i.e. a stranger walking along a bridge), can I sell it without seeking their permission?

    My understanding is that children are protected but adults aren't.

    If you can sell it without their permission, do I have to withdraw it if they ask?

    I guess the question is in a public space, who owns the copyright; the photographer or the subject?

    Comments really appreciated as I've got a few shots I'm dying to sell but a little hazy on the law!

  • #2
    Age is no matter; an individual photo can be sold at any time. Think art at a market; it's under non-commercial usage.

    Posting on the web is commercial (if under your name, it counts as advertising, direct or indirect).

    Read this. It is similar around Australia, exceptions are mostly noted in there anyway - privacy laws don't differ (much if at all) in Australia; state laws only differ in regards to private/public-owned train stations permitting or not allowing photography, etc.

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    • #3
      FriedChicken: Not quite.

      It's legal to TAKE images of strangers (regardless of age) provided you are in a public space, but selling them (or having them published) is another matter. Posting online (on Flickr, for instance) is a gray area that hasn;t been addressed in most markets yet (Canada and the US in particular).

      If you want to SELL or USE COMMERCIALLY, you need a model release.

      Regardless, however, its always a good idea to get a model release. Just to be safe.

      Of course, if it comes to editorial work, the rules change: In most Commonwealth countries, editorial use doesn;t require a model release, so having it published in a newspaper or other editorial item is okay.
      I am responsible for what I say; not what you understand.
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      • #4
        Originally posted by OsmosisStudios View Post
        If you want to SELL or USE COMMERCIALLY, you need a model release.
        Generally, this is incorrect, in the US at least (I believe Australia is similar).

        It's also a geat example of why you should ask an lawyer about these things instead of people on some forums on the Internet.

        Generally you do not need a model release to sell a print. A sale is not the test of commercial use. Commercial use concerns advertising, promotion, and the like. Thus, you wouldn't be able to use the image to promote your work.

        Is there a grey area where, say, you're displaying the image on your website to sell prints? Sure is. Which is why you should talk to a lawyer.

        Regardless, however, its always a good idea to get a model release. Just to be safe.
        Generally, this is correct.
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        • #5
          You are only partially correct. Selling prints does not constitute commercial use.

          Originally posted by OsmosisStudios View Post
          FriedChicken: Not quite.

          It's legal to TAKE images of strangers (regardless of age) provided you are in a public space, but selling them (or having them published) is another matter. Posting online (on Flickr, for instance) is a gray area that hasn;t been addressed in most markets yet (Canada and the US in particular).

          If you want to SELL or USE COMMERCIALLY, you need a model release.

          Regardless, however, its always a good idea to get a model release. Just to be safe.

          Of course, if it comes to editorial work, the rules change: In most Commonwealth countries, editorial use doesn;t require a model release, so having it published in a newspaper or other editorial item is okay.
          Best,
          Jim
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          • #6
            Two good resources for this sort of information are:
            Model Release Primer
            Photo Attorney

            BCampbell seems to be right on par with the above sites regarding what you can do with photos taken in public places.

            Originally posted by AndyTG View Post
            I guess the question is in a public space, who owns the copyright; the photographer or the subject?
            In the US, you own the image once you snap the photo unless you're working for someone else and explicitly transfer the right to them. So they only time they would own the copyright is if they hired you to take their photo and you signed a contract saying you're transferring the copyright.
            [ԯ] marcus
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            • #7
              Originally posted by dakwegmo View Post
              . . .

              In the US, you own the image once you snap the photo unless you're working for someone else and explicitly transfer the right to them. So they only time they would own the copyright is if they hired you to take their photo and you signed a contract saying you're transferring the copyright.

              True again. Just be careful of the difference between Copyright and Trademark.
              Best,
              Jim
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              • #8
                After looking at that site FriedChcken posted then yes you can sell for the purpose that you are selling it, if that purpose is just as a photo rather than for an advertising campaign or something.
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                • #9
                  Originally posted by OsmosisStudios View Post
                  FriedChicken: Not quite.

                  It's legal to TAKE images of strangers (regardless of age) provided you are in a public space, but selling them (or having them published) is another matter. Posting online (on Flickr, for instance) is a gray area that hasn;t been addressed in most markets yet (Canada and the US in particular).

                  If you want to SELL or USE COMMERCIALLY, you need a model release.

                  Regardless, however, its always a good idea to get a model release. Just to be safe.

                  Of course, if it comes to editorial work, the rules change: In most Commonwealth countries, editorial use doesn;t require a model release, so having it published in a newspaper or other editorial item is okay.



                  Yup, very true!

                  # LEGAL to take the photo and use for personal use
                  # ILLEGAL to sell or use it in any way, without a model release
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                  • #10
                    Selling an individual photo, as a singular piece of art, does not count. Not in Australia, anyway.

                    Using an image in a magazine or newspaper also doesn't require a model release, unless it's the cover of something (or yet again, advertising somehow).

                    I've an commercial/law degree, if that means anything, even if I no longer practise. It's old, but I'm not that old.
                    Last edited by FrankLamont; 04-08-2010, 08:55 AM.

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                    • #11
                      Originally posted by freybear3 View Post
                      # ILLEGAL to sell or use it in any way, without a model release
                      Peculiarly, the sale of an individual photograph does not constitute commercial use in Australia, so there's no need for a release.

                      Stick it in your on-line sales gallery and you're fine, but put it in your portfolio and you're promoting yourself and that's a commercial use and you need a release.
                      Neil
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                      • #12
                        Sorry, but you're wrong on the second point.

                        Originally posted by freybear3 View Post
                        Yup, very true!

                        # LEGAL to take the photo and use for personal use
                        # ILLEGAL to sell or use it in any way, without a model release
                        Best,
                        Jim
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                        • #13
                          My understanding (here in the UK) is that for commercial use a model release is always needed, but selling photos themselves is not classed as commercial, it is classed as artistic use so a model release is not needed, which seems strange. However, for any kind of advertising (including portfolio), stock etc. a model release is definitely needed.
                          Joe
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