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I am helping an older person self-publish her memoir. She has photos of students in plays that she produced in a school setting some 30 plus years ago. She cannot now track down these people to get their permission to publish the photos. Can she still use the photos? The photos were NOT taken by a professional and copyrighted in any way---but just taken by friends and given to her.

She might sell a few copies of the book, but mostly she is giving it to family and friends.

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You are incorrect in your assertion that the photos aren't copyrighted in any way - all creative works are copyrighted as soon as they created. In this case the copyright resides with the photographer, but if she has any intention to sell the book, she really needs a model release. Does the school not have some kind of alumnus association that might be able to contact the students, in the same way they put a call out for class reunions? –  ElendilTheTall Oct 29 '12 at 15:52
    
I thought you could use pictures of people without their permission as long as they were someplace where there was "no expectation of privacy". I could be wrong, and this probably varies by jurisdiction. I'd like to hear someone's opinion on this that actually knows more about the law than I do. –  Olin Lathrop Oct 31 '12 at 0:21
    
See also photo.stackexchange.com/questions/29181/… –  Clara Onager Nov 14 '12 at 9:11
    
@ElendilTheTall AFAIK, automatic copyright (i.e.. copyright to the creator w/o explicit copyright registration) only started in the US and some other countries in 1968 or '67. This is why a great number of photos, movies and songs that had not had copyright asserted in some time-frame fell into the public domain. A classic example is Romero's "Night of the Living Dead" which is in the public domain. –  jdv Sep 22 at 16:18

3 Answers 3

The laws regarding this are very different in different states/countries and if you are concerned you really need to ask a lawyer but...

You don't need a model release to sell a photo - do you think newspapers have model releases for all the photo they print? (especially the paparazzi ones).

Using a picture in ads of material connected to a company requires a model release because you are implying the model supports your company - and you don't want the model to decide he/she does not like your company and sue you.

It's perfectly legal (in most of the world) to publish someone's picture without permission as long as there's nothing offensive, you are not harming that person and you are not misrepresenting the person or his/her opinions (details vary by location).

Of course someone can always sue you anyway.

By the way, unless the photographer explicitly transferred the copyright then the pictures are still copyrighted by him (but, based on the story he is extremely unlikely to get upset when the pictures are published so everything will probably be ok)

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Newspapers are a special case actually - newspapers use images of people without a model release if publication is of interest to the general public or if it unreasonable to expect a model release (e.g. at a demonstration). People have taken newspapers to court over paparazzi images and have won against them and in most cases these images are an invasion of privacy. –  DetlevCM Oct 29 '12 at 21:30
    
A more difficult situation is offered when you have a scene in public that does not offer a reasonable expectation of privacy where you cannot be expected to ask people to step away/have the area close off, etc. to shot a motive in which the people aren't the primary focus - some countries may allow the use of such photos, others might not, but they are a different case altogether, with people not being the primary focus. –  DetlevCM Oct 29 '12 at 21:32
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@DetlevCM - In some places you always need permission, in some places photographing people in public is always ok - in most places it's somewhere in the middle - and just to make things more confusing the laws change all the time –  Nir Oct 29 '12 at 22:12

IANAL* - but
technically a release is probably required from the subjects, and
technically permission is probably required from the copyright holders
BUT fortunately, in most cases, the madnesses of modern society do not usually fully reach into such special areas.

ie worst case she may be able to be sued by both the subjects and the photographers, but in practice it is exceedingly unlikely to happen.

If the book inexplicably becomes an international best seller and won the Booker prize then you can probably expect law suits from hopeful relatives. But anything much less than that is more likely to more attract letters of pleasure from long lost friends than prosecutions.

But, again, IANAL.


*IANAL - I Am Not A Lawyer.

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The phantom downvoter strikes again. How strange. Almost a year after answer given. I see Nir has one too - possibly from the same person who has no clue what the terms "useful"/"not useful" mean. –  Russell McMahon Sep 22 at 10:53

Ultimately the only truly useful answer will be from a lawyer who specialises in copyright in the relevant jurisdictions (probably wherever it is going to be published, possibly also where the photographs were taken).

That said, I think the general concept you're looking for is whether it's Editorial use or Commercial use. The former tends to be things like newspapers, magazines, and other such newsworthy or documentary uses, while the latter is typically "selling/endorsing a product".

Editorial use typically requires just permission from the photographer, while Commercial use requires model releases as well. This is what allows journalists to publish photos of people (it would be impossible to have photos of any crowd of people in a newspaper without such exemptions!).

Something like a memoir might be a bit of a grey area, but I can see an argument that if it's essentially just a factual, historical account, that it would fit under "editorial" use. I think one of the key aspects is whether the people in the photos would be assumed to be endorsing the product—so if it's clear they're people in or related to the story, I suspect a model release isn't required.

Again, a lawyer's really the only safe way to be sure, but here are some resources that (to me) suggest you probably only need photographer permission (which may or may not have already been given, along with the original photos)

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protected by John Cavan Sep 25 at 2:45

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