HIDDEN IN PLAIN SIGHT:
© 2015 Mark H. Barinholtz
In this era of iPhones, Facebook and YouTube, filmmakers and photographers are everywhere creating and posting visual content. Over the years, I have received many inquiries about what level of protection may be necessary when creating images that depict persons, activities or well-known things in public places, or in situations that appear to be fair game for appropriation. There is often confusion over whether the "public" aspect of the content (or circumstances of its creation) facilitates free use – particularly in a commercial context, but also in ones leaning toward editorial.
Certainly, the type of use one is contemplating impacts the question of whether or not a release, clearance or permission will be necessary or advisable. Rules of thumb – such as, "for commercial use get a release, for editorial use don't worry about it" – can be helpful in some contexts. Unfortunately, professional life is a bit more complicated and risky than that. Just ask photographer Charles M. Gentile who back in the 1990s was drawn into a long and costly legal journey when he was sued for trademark infringement by Cleveland’s Rock & Roll Hall of Fame and Museum. Gentile was distributing posters of one of his images, taken from a public vantage point, of the Museum’s pyramid-like building at sunset. Although he ultimately won the last round on technical trademark grounds, the battle was long and costly.
This article is an effort to identify and discuss some of the concepts that seem to be at the heart of the confusion over the implications and limitations of creating visual content gleaned from what may be easily visible for everyone to see.
This concept engenders confusion because the phrase has both a technical legal meaning, and a more everyday colloquial meaning. From a “legal” perspective, property rights that belong to the public at large and are subject to use by anyone, are referred to as being “in the public domain.” In that sense, the universe of things unprotected by intellectual property rights, e.g., ones which otherwise were or might be protected by copyright law, are subject to appropriation by anyone. For example, works whose copyright term has expired automatically fall into (or “are dedicated to”) the public domain. Previously protected works may also fall into the public domain by being abandoned, or via various other technical lapses.
But colloquially, the phrase public domain is simply used to describe the everyday realm of widely knowable subjects which are out in the open for all to see, or are well-known, or merely perceptible by the community at large. In this sense, the phrase “public domain” encompasses things we all see or know because they are out there in our world for everyone to perceive and acknowledge, whether subject to intellectual property protection or not. A word of caution – such colloquial public domain matters may still be the subject of copyright protection. For example, as more fully explained below, just because a work is published or on public display, does not necessarily mean it’s not fully protected or protectable.
For creators’ purposes, the concept of “public domain” deals with whether an image or footage of some object, place or person may be captured and used without permission, in the face of existing copyright and trademark laws. The notion of "free copying" purports to say that ideas and other creations, once disclosed to the public, may be freely copied. Intellectual property laws (copyright, trademark, and patent) are exceptions to the notion of free copying, and have been enacted to create zones of legal protection for their creators for limited times and under specific circumstances. These laws were designed by the Founders to advance the public good by fostering the creation of new ideas and works. In the case of patent and copyright, those works will ultimately make their way into the "public domain" after a prescribed period of time and no longer be protected from free copying. So, watch out. Just because someone or something is on “public display” or in “public view” or “visible from a public place” does not mean that he, she or it is in the "public domain," in the sense that it may be lawfully appropriated. And, what may be in the public domain for one branch of intellectual property law, such as copyright, may still be protected by another, such as trademark.
This concept comes from the copyright law, and is used to help identify and define one of the exclusive rights reserved to creative authors. But, the copyright law provides that mere public display does not constitute publication of a work. And publication, in and of itself, does not divest the author of her copyright. The point to remember about capturing images of persons or objects that are put on public display is that such fact does not create or even imply a license to film or photograph, particularly for commercial purposes. Public display is a concept which focuses more on the intention of the person who places himself or some distinctive object into a place within the public’s ability to observe. While it may be the express or obvious purpose of such act to have other people view what is taking place, that purpose does not confer upon the observer the right to freely copy for exploitative gain.
This concept is associated with copyright laws pertaining to footage or images depicting persons and things publicly visible, such as buildings or people on the street. It can also be implicated in other contexts such as invasion of privacy or infringement of rights of publicity. The creative author needs to be aware that just because she, along with other members of the public at large, can “see” something, doesn't automatically mean that she can sell the images she creates while "viewing" with her camera. Public view refers to the status of some object or person being in a place where they are visible. The component of intent is generally less related to the notion of public view than to the concept of public display, because public view places more emphasis on the perception of the observer. People openly go about their business every day without considering themselves to be "performing" or being on "display." The lesson to glean here is that rights of privacy or publicity, or even copyright and trademark limitations, may be implicated by reproduction of visual imagery created, even when the subject matter is in public view.
The right of publicity refers to the common law (and in many states, statutory) right of every human being to control the use of his or her identity, particularly visual images of that identity, for commercial purposes. The fact that someone has placed herself or her image on public display, or in public view, may say something about her intentions with respect to privacy from a zone of seclusion standpoint. But that does not mean that use of a photograph of that person or such activities in public without permission, will not violate the person's right of publicity, or right of appropriation privacy. Such use of imagery may also serve to defame the subject or place her in a false light – whether well-known or not. It has been said that the unauthorized commercial appropriation of one's identity converts the potential economic value in that identity to another's advantage. In the past year alone, former Panamanian dictator Manuel Noriega, and the heirs of “Aunt Jemima,” have joined the rising tide of those claiming right of publicity violations. If you’re the “violator,” you may find yourself facing a legal claim.
News – the “public’s” right to know.
A seasoned personal injury lawyer once told me that a case would likely have more value “if there’s blood on the street.” In the recent theatrical feature film Nightcrawler, a dark look by Hollywood into the shadowy world of nighttime independent crime news reporting, the nightcrawler’s mantra is “if it bleeds, it leads,” i.e., the footage will headline the news. And while the subject matter of such news content helps drive up the price, the foundation of the protectability of the footage remains the copyright law.
In April 1992, following the beating of Rodney King by the Los Angeles police, rioting broke out in South Central L.A. One firm, Los Angeles News Service, with its own specially outfitted helicopter, captured video footage of a scene at the intersection of Florence and Normandie, when a hapless truck driver, Reginald Denny, was dragged from his rig and savagely beaten. Although L.A. News Service had licensed other footage to a local station (KCAL-TV) in the past, several other stations apparently outbid KCAL for the exclusive on the Denny footage. Not to be outdone, KCAL obtained an unauthorized copy of L.A. News Service’s videotape and broadcast the Denny footage without a license. L.A. News Service sued for copyright infringement, and KCAL claimed “fair use” based on newsworthiness of the subject.
Initially, the District Court agreed with KCAL, and the case was tossed. But the Ninth Circuit reversed, holding there was no fair use. In its opinion, the Court of Appeals described the role of the independent video news gatherer, characterizing such efforts and uses as “commercial,” despite their news content. In light of the Ninth Circuit’s own four-factor analysis, the Court declined to allow the fair use defense to defeat L.A. News Service’s infringement claim. The Ninth Circuit upheld the importance of protecting such image creator’s copyrights. Neither the fact that the images captured were open to public view, nor that the images were significantly newsworthy, had enough weight to tip the balance against the rights of the news gatherers to prevent them from profiting from licensing the copyright protected footage they had created – despite the fact that it was captured from newsworthy, publicly observable events.
We all love the first amendment. And as long as you’re not trespassing or invading someone’s right to be left alone, you really shouldn’t feel restrained in your efforts to create footage or take pictures as a means of expressing yourself. But when it comes to reproducing those images, you should think twice and proceed with caution.
© 2015 Mark H. Barinholtz