This section is from the book "Complete Self-Instructing Library Of Practical Photography", by J. B. Schriever. Also available from Amazon: Complete Self-Instructing Library Of Practical Photography.
Private Customers. In the absence of a stipulation to the contrary, the ordinary bargain between a photographer and his customer includes, by implication, an agreement that the latter shall control the disposition of the prints from the negative for which he or she sits. The unathorized use of the photographs by the photographer is a breach of implied contract, as well as violation of confidence, even though the ownership of the negatives may be in the photographer.
Public Characters. Public characters, however, are, in the majority of cases, denied the protection of the above rule. When a person submits to being photographed in his public capacity, free of charge, there is an implied agreement that the photographer may exhibit and sell the photograph.
994 Third Persons. - The weight of authority seems to be that the unauthorized use of a person's photograph by third persons (when not libelous) is neither objectionable at law nor restrainable at equity as an invasion of his right of privacy. It has been held that the owner of photographs of other persons has a property right in them, entitling him to maintain an action for their detention or use by third persons, without the sitter's permission.
995. In the State of New York, however, it is not permissible under the law to show or display, or cause to be shown or displayed, for the purposes of advertising either the photographer or some merchandise, in the photographer's gallery, or elsewhere, or in public, the photograph of any private person without written permission of the said person. A heavy fine can be imposed, for any infringement of this act, on the person or firm displaying the pictures without permission. In the case of a minor, written permission of the guardian or parents should be obtained.
Permission For Right Of Reproduction From Subjects. The photographer should always secure the written permission from the subjects for the use of their photograph or photographs. There are cases where the subject may demand that the specific purpose for which the photographs are to be used be enumerated in the contract, but the simpler the contract and the less details incorporated therein, the better for the photographer, as it allows him a wider range for the use of the photographs. There may be a time when he will desire to use the photograph, and if the permission from the subject was for a specific purpose he might find it difficult to obtain another permission. For this reason, the simpler the contract the better, and the following form is an excellent one. This should not only be signed by the subject, but also by two witnesses:
997. Contract Permit -
Scranton, Pa. May 22, 1908.
For value received, I hereby grant...........
Photographer, the right to the use of my photograph for the purpose of reproduction.
Witnessed: - .................................
998. If the subject desires to have stated the exact purpose for which the photograph is to be used, as well as to limit its use, these particular features may be incorporated in the contract, but if nothing is said regarding the matter the above form will answer the purpose. Should the subject be a minor, the parent must also sign the form.