Help with legality.

Phil Young

Phil Young

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Hi folks. Bit of help needed if you please :)

I'm need to photograph members of a gym (private property) and the general manager has it in her head that it's illegal to then publish photos with people in without written consent frist from that or those people.

I intend on putting a notice up saying there is photography going on and your presence means acceptance blah blah blah, but can anybody point me in the right direction of something in writing that backs up my advice of not needing permission.

Thanksin advance,
Phil.
 
You can't point to something that doesn't exist. 'The law' doesn't define what we can do, it defines what we *can't* do.

However if they're for advertising I'd get models in personally. Saves a whole ton of mess if someone does object and they'll most likely be more 'perfect' too.
 
For something with potential legal repercussions should it all go wrong, get proper legal advice.
 
If it is in a private place you do need people's permission. Especially in a gym setting where people may not want their photo taken at all. I think it would be good practice to get that permission regardless. If you can arrange with those that are happy in advance and make a time to do it when those not happy won't be there or use models it would be far easier than dealing with any fall out. You should go around with a sheet for people that are ok with it to put their name and signature on. Then there is little argument. Just having a sign and passive agreement doesn't seem on to me.

In the photography weekend I've just been on it was mentioned there that there is no automatic right for a photographer to publish images taken at a private event without consent from those identifiable in those images. In public places it doesn't matter.
 
srichards said:
If it is in a private place you do need people's permission. Especially in a gym setting where people may not want their photo taken at all. I think it would be good practice to get that permission regardless. If you can arrange with those that are happy in advance and make a time to do it when those not happy won't be there or use models it would be far easier than dealing with any fall out. You should go around with a sheet for people that are ok with it to put their name and signature on. Then there is little argument. Just having a sign and passive agreement doesn't seem on to me.

In the photography weekend I've just been on it was mentioned there that there is no automatic right for a photographer to publish images taken at a private event without consent from those identifiable in those images. In public places it doesn't matter.
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Is this what you KNOW or believe? Very important that I get definite answers without any bias or belief involved.

As I understand, there is no legal requirement for a model release and without any prior law or rule in place, nobody can dictate usage rights however, if it breaking the law such as public privacy then there may and most likely will be trouble.
 
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ianal, but if it is for advertising / promotional material, then i believe a model release is required. But a release is not required if they are not recognisable.
 
If in doubt then get a signed release from everyone in the shot.
Who asked to take the pics? Maybe they can help.
 
Phil Young said:
Case closed.

You don't need permission or a model released. Also found out that taking photos of bank notes is an offence!

Seems that unless it's an invasion of privacy, there's no problem.

If anybody is not sure feel free to read what I found;

http://www.urban75.org/photos/photographers-rights-street-shooting.html


http://www.sirimo.co.uk/wp-content/uploads/2009/05/ukphotographersrights-v2.pdf
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That's public street photography - but is that still valid for shooting on private property?
 
wouldnt that count as advertising / promo material?

the link below goes into more detail, but the pertinent part

What is commercial use?
Commercial use generally means that an image or clip is used to sell a product, promote something or raise money for a cause. This includes use in advertising, marketing, promotion, packaging, publication covers, advertorials and consumer or merchandising products.
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If I understand correctly, the client IS the gym. If that is the case then I would suggest that the General Manager deals with the consent issue. This could be easily achieved by members, when signing into the club, reading and signing a notice advising them of what's happening that day.
 
Phil Young said:
Usage rights can't be dictated either unless there's an invasion of privacy or you're photographing a place where rules have been imposed (trafalgar square for example).
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Privacy would be expected in a health club.
A large notice telling people not to use the facilities whilst photos are being taken may not be enough should someone object afterwards. Even a verbal agreement with each person may not be enough as they could always deny or state that they did not fully understand.
 
Suvv said:
Privacy would be expected in a health club.
A large notice telling people not to use the facilities whilst photos are being taken may not be enough should someone object afterwards. Even a verbal agreement with each person may not be enough as they could always deny or state that they did not fully understand.
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So what would they do - take the gym to court for money?

Let's be fair - notices will be up around the club, members will be pointed to a notice at reception and in the worst case scenario, it's private property, rules would be dictated by the owner of the property and the law favours that so....I don't see a problem.
 
I've just been on a work shop which stated you need consent from those featured to publish images of them taken in a private place. It's only news coverage that bypasses this requirement.

For commercial purposes you'll also need model releases for all those people featured.
 
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Suvv said:
Privacy would be expected in a health club.
A large notice telling people not to use the facilities whilst photos are being taken may not be enough should someone object afterwards. Even a verbal agreement with each person may not be enough as they could always deny or state that they did not fully understand.
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I don't think that would be an invasion of privacy...

Do you remember a photographer took some shots of Kate Middleton topless??? That's probably classed as an invasion of privacy ;)
 
Phil Young said:
So what would they do - take the gym to court for money?

Let's be fair - notices will be up around the club, members will be pointed to a notice at reception and in the worst case scenario, it's private property, rules would be dictated by the owner of the property and the law favours that so....I don't see a problem.
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Probably not, but lets be realistic. The gym won't want to upset its clients. They certainly won't get all pugnacious over the legalities of this, but it is up to them to find a way the satisfies them and their members
 
Phil Young said:
So what would they do - take the gym to court for money?

Let's be fair - notices will be up around the club, members will be pointed to a notice at reception and in the worst case scenario, it's private property, rules would be dictated by the owner of the property and the law favours that so....I don't see a problem.
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Not sure if you saw my post above, but surely using the pictures on a website is using it to 'promote something' and is a commercial use, so requires a model release. i cant see how it could be read any differently...
 
Rapscallion said:
Not sure if you saw my post above, but surely using the pictures on a website is using it to 'promote something' and is a commercial use, so requires a model release. i cant see how it could be read any differently...
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In the UK its also not true.......you don't require model releases as they have no legal standing over here. By using the photos to promote something you may leave the way open to a liable case, in which case having a model release would help you persuade that they understood how the image would be used
 
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If this involves children in the gym then beware, some parents seem to think that anyone with a half decent camera is a pervert , and heaven help you if you have a big lens to go with it. Make sure there is always a person CRB checked present with you at all times.
 
Phil Young said:
Is this what you KNOW or believe? Very important that I get definite answers without any bias or belief involved.
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Consult a solicitor then, instead of asking for legal advice on a photography forum.
 
Rapscallion said:
Not sure if you saw my post above, but surely using the pictures on a website is using it to 'promote something' and is a commercial use, so requires a model release. i cant see how it could be read any differently...
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There's no legal standing for a "model release" in the UK just as there is no offence of "Invasion of Privacy". What you do need is a contract and you must also not use the images in a defamatory way.
 
srichards said:
I've just been on a work shop which stated you need consent from those featured to publish images of them taken in a private place. It's only news coverage that bypasses this requirement.

For commercial purposes you'll also need model releases for all those people featured.
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MartynK said:
Consult a solicitor then, instead of asking for legal advice on a photography forum.
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That's what I opened the thread for - to get a link confirming the OP. Beliefs aren't helpful here, hence my question.
 
I've no idea what the strict legal position is; for that you need a lawyer. However a couple of months ago I was having a cup of tea at half time and was standing next to a poster displaying the Football League regulations. I suspect they have taken legal advice. All the time I've being going to matches I didn't realise I was agreeing to the following:-

24 By entering the Ground, all persons are acknowledging that photographic images and/or video recordings (and/or stills taken from video recordings) may be taken of them and may also be used in televised coverage of the game or by the Club or any Football Authority for marketing or promotional purposes. Entry into the Ground is confirmation that all persons have consented to such use of their image. If these images should feature an individual prominently the Club will make reasonable efforts to gain the consent of that person before publishing such images, however, if this is not possible, then entry into the Ground shall be deemed consent unless the Club is notified in writing to the contrary.

25 Further to paragraph 24, if such person is under 18 years of age, the parent, guardian, or responsible adult who is accompanying them into the Ground shall be deemed to have provided consent on their behalf.

I suspect all large stadia and arenas have similar terms of entry.
 
Phil Young said:
Advice not necessary folks - my brief is to photograph members. Not models.
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Then ask before you take a photo of any member and get the members you do photograph to sign a release consenting to the use of their image in the promotion of the gym (if they're that concerned about it, get the gym's lawyer to draft it because they're the ones that could be held liable in the event of any dispute after publication, not you).

If needs be, put up some prominent signs in the areas you're taking pictures. Get the gym to advise their clients well in advance when you're going to be doing it so they can plan on not being there if they object.

It's not that difficult, is it? :shrug:
 
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drounding said:
If this involves children in the gym then beware, some parents seem to think that anyone with a half decent camera is a pervert , and heaven help you if you have a big lens to go with it. Make sure there is always a person CRB checked present with you at all times.
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I'm not getting into that silliness. I'm not interested in ignorance,
zednini said:
I've no idea what the strict legal position is; for that you need a lawyer. However a couple of months ago I was having a cup of tea at half time and was standing next to a poster displaying the Football League regulations. I suspect they have taken legal advice. All the time I've being going to matches I didn't realise I was agreeing to the following:-

24 By entering the Ground, all persons are acknowledging that photographic images and/or video recordings (and/or stills taken from video recordings) may be taken of them and may also be used in televised coverage of the game or by the Club or any Football Authority for marketing or promotional purposes. Entry into the Ground is confirmation that all persons have consented to such use of their image. If these images should feature an individual prominently the Club will make reasonable efforts to gain the consent of that person before publishing such images, however, if this is not possible, then entry into the Ground shall be deemed consent unless the Club is notified in writing to the contrary.

25 Further to paragraph 24, if such person is under 18 years of age, the parent, guardian, or responsible adult who is accompanying them into the Ground shall be deemed to have provided consent on their behalf.

I suspect all large stadia and arenas have similar terms of entry.
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This is a good example of private property dictating their terms to it's customer's.

Thanks for sharing.
 
Musicman said:
It's not that difficult, is it? :shrug:
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Potentially yes, and apparently unnecessary. I also think there's no need to make a big thing put of taking photos and promoting the ignorance that permission is needed.

It's a bit like not taking any photos of kids to stay on the safe side - even though there's no law against it.

I say no to promoting ignorance - WHO'S WITH ME?!?! ...just me then? Lol.
 
It's an arse covering exercise to protect against claims of implied endorsement by the photographic subjects where none may exist.

Possibly a far fetched scenario, but it's possible such things might happen...
  • OP takes photo of gym member and struggling mostly-unemployed actor/waiter, Donny Flashheart
  • Gym publishes it on their web site
  • 3 months later, Donny wins X-Factor, becomes a national celebrity and moves to a more expensive gym populated by other arriviste slebs.
Suddenly the gym has a problem as the photo of their now celebrity client creates an implied endorsement of their gym (isn't it great that Donny loves it so much that he isn't working out there any more) and he may have a claim to prevent their using the image.

If there's release, then they are covered.

Also, should the image need to be used in a broadcast TV ad, then the Clearcast, the UK clearance body for broadcast ads on television, will not clear an ad for broadcast until it has been provided with written permissions from any living individuals featured or referred to in a TV ad. I have some experience of this as my boss' wife is a producer of TV ads for a major advertising agency and I've supplied her with stills photos for a couple of ads for household brands - the briefs are quite clear for this reason.

If you need to go get it later, then could be a problem if the member refuses or cannot be contacted.
 
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Th
Musicman said:
It's an arse covering exercise to protect against claims of implied endorsement by the photographic subjects where none may exist.

Possibly a far fetched scenario, but it's possible such things might happen...
  • OP takes photo of gym member and struggling mostly-unemployed actor/waiter, Donny Flashheart
  • Gym publishes it on their web site
  • 3 months later, Donny wins X-Factor, becomes a national celebrity and moves to a more expensive gym populated by other arriviste slebs.
Suddenly the gym has a problem as the photo of their now celebrity client creates an implied endorsement of their gym (isn't it great that Donny loves it so much that he isn't working out there any more) and he may have a claim to prevent their using the image.

If there's release, then they are covered.

Also, should the image need to be used in a broadcast TV ad, then the Clearcast, the UK clearance body for broadcast ads on television, will not clear an ad for broadcast until it has been provided with written permissions from any living individuals featured or referred to in a TV ad. I have some experience of this as my boss' wife is a producer of TV ads for a major advertising agency and I've supplied her with stills photos for a couple of ads for household brands - the briefs are quite clear for this reason.

If you need to go get it later, then could be a problem if the member refuses or cannot be contacted.
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UK law doesn't have exceptions for celebrities, we are all equal in the eyes of the law.

Just yesterday I walked passed a Samsung shop that had a similar notice to mine except it stated persons in the shop may be filmed and televised.
 
Phil Young said:
UK law doesn't have exceptions for celebrities, we are all equal in the eyes of the law.
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Indeed, but as a celebrity he may be more inclined to take action if it were though to be 'passing off' as a celebrity endorsement.

Even if you are successful in defending a claim, there are still lawyer's fees to pay with no guarantee that you would be awarded costs.

Anyhow, the point is also that there are various codes of practice for the advertising industry, which do urge you to obtain written permission from subjects before portraying them in adverts. These are the codes that are enforced by the ASA.

For non-broacast media, s6 of the Committee of Advertising Practice UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing

http://www.cap.org.uk/Advertising-Codes/Non-broadcast-HTML/Section-6-Privacy.aspx

CAP said:
6.1 Marketers must not unfairly portray or refer to anyone in an adverse or offensive way unless that person has given the marketer written permission to allow it. Marketers are urged to obtain written permission before:

  • referring to or portraying a member of the public or his or her identifiable possessions; the use of a crowd scene or a general public location may be acceptable without permission
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[relevant section highlighted in bold]

Short of legal rulings in a court of law, the CAP/ASA have various sanctions available to them to deal with breaches of their codes.

So, no, it's not an absolute legal requirement, but it is good practice to obtain written permission and there may be significant costs and inconveniences if you do not.
 
Phil Young said:
Just yesterday I walked passed a Samsung shop that had a similar notice to mine except it stated persons in the shop may be filmed and televised.
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Did they state that your likeness may be used in print, online and television advertising?
 
Phil Young said:
[snip] I also think there's no need to make a big thing put of taking photos and promoting the ignorance that permission is needed.

[snip]
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Phil, people arent suggesting you cant take the photos. It is what is done with those photo's after they are taken, and commercial use, which is what you are suggesting the gym will be using them for, is a minefield, that model releases will potentially protect the gym from future problems. Anyway, im out, it appears you only want the answers that corroborate your point of view.
 
Rapscallion said:
Phil, people arent suggesting you cant take the photos. It is what is done with those photo's after they are taken, and commercial use, which is what you are suggesting the gym will be using them for, is a minefield, that model releases will potentially protect the gym from future problems. Anyway, im out, it appears you only want the answers that corroborate your point of view.
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Phil,

It's not about corroboration. It's about is this allowed or not, legally. And legally it is.

That's it, end of discussion as dar as I'm concerned - good practice as mentioned above is another discussion and I have various notices around the gym informing what the use will be as well as instructing people to give me a signal if they don't want to be photographed.

As far as im concerned that's fine and anything else regarding release forms etc (of which isn't a legal requirement) it's just OTT.

Legally, you can take a photo of someone and make money from their face - without their concent. If they want to challenge it they can...but probably won't get very far unless it compromises their reputation etc...
 
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Phil,

You're right about the legalities, but it promise if you are that pugnacious with the gyms clients they'll lose money
 
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