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I took a picture of what appeared to be 2 siblings just goofing off on a park bench at a farmers market in front of the restaurant my wife and I were at. Would the subjects be considered recognizable? and would i be required to get a release to use the picture in the future?

  • It was in Nevada, and yes, I was thinking of making a print of it for display and / or sale – Robert Kwasny Jan 22 at 16:00
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One of the classic cases referenced in all of the photojournalism textbooks is Graham vs. Daily Times-Democrat from 1964. Ms. Graham was exiting a funhouse at a county fair when a photographer from the local newspaper snapped her photo just as she passed over a grate that blew up her dress and exposed her underwear. The paper published the photo with the caption "All's fair in Fair Fun." Even though her face was not visible in the photo, Graham asserted that she was identifiable due to two of her children also appearing next to her. She sued the paper and won damages. The jury in the case found that the photo, though truthful and captured in public, was embarrassing without containing any information of legitimate concern to the public. Had the photo also communicated something the jury found to be of legitimate concern to the public, she would not have been awarded damages.

The State Supreme Court stated in their decision of the appeal:

There is a fertile medium in this field of torts for the production of conflicts between the right of the individual to be let alone, and the right of the public to know--the latter concept being crystalized in our age old concept of freedom of speech and of the press.

For a more complete look at what one can and can not do with photos taken in public places in the U.S., please see: A photo of my wife has been used in a website article without her permission. What can we do?

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I can not speak to the legality of it but i can say from experience that just because a face is not in the photo does not mean the person is not recognizable.

I posted a photo on my smugmug page that was of two nudes in embrace inside the grand canyon, shot from a distance, meaning they only filled a portion of the frame as the surrounding red rock canyon was as much the subject matter as the nudes, their faces were not visible. After only a few days i received a call from the two subjects that asked if had posted the photo, that a colleague of theirs had called them and had recognized there nude body's.

I had not asked them if i could post it because i though there was no way someone could identify them by just their body's, plus it was a lith print, very soft, no tattoo's or scars or other identifiable features other than body shape or muscle structure.

Lesson learned.

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IANAL, but since you shot it in the US, I am pretty sure you are OK to use it for non-commercial purposes, so a print for display or sale should be fine.

Using it for stock or selling directly for an ad is not. Those would require a release.

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    Pretty sure that "a print for ... sale" is essentially one of the definitions of "commercial use". Granted, it's not the same as mass-producing such prints and selling them, but if it is exchanged for monetary compensation, that's commercial... – twalberg Jan 22 at 22:02
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    @twalberg No, a print for sale does not fall under 'commercial usage' of a photo. Neither does selling 500,000 copies of an art book for $250 a pop with the same image in it. Commercial usage generally means the person pictured is either implied to be or explicitly endorsing a product or service. In other words, an ad. Images used in editorial content of newspapers and magazines sold for money are not commercial usage. Images used for artistic or aesthetic purposes in publications that are sold are not considered commercial usage. – Michael C Jan 22 at 23:28
  • @MichaelC That's one relatively narrow use of the term commercial. More broadly, it can mean "prepared, done, or acting with sole or chief emphasis on salability, profit, or success", in light of which manufacturing a product for the specific purpose of selling it is "commercial", whether it's a single item or many. – twalberg Jan 23 at 0:58
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    Ostensibly, yes, but when lawyers talk about commercial exploitation of your likeness, they are using the much narrower meaning. A print of a photo falls under the category of a creative or transformative use, which is very different from the use of a photo of a person to advertise a product or service, because it does not imply endorsement in any way. For the most part, creative use, even if the work is sold commercially, falls within the scope of protected speech unless it it is inherently privacy-violating (e.g. Graham) or the subject is famous (in which transformativeness matters more). – dgatwood Jan 23 at 1:11

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