Exclusive rights - in public place events (cycling, running etc.) - limitations or restrictions

[farmer_rob]

Fair enough if the cyclist was out on the town, same as a movie star, AFL player etc. Try taking a photo of an AFL player on the oval, or an Australian Cricketer on the paddock, you are quite restricted about what you can do with those, certainly if you started trying to sell them, the governing bodies of those sports and most likely the player's lawyer would be contacting you.If a cyclist wished to, I am sure he/she could find a lawyer willing to take that perspective and drag you into court basing it on the track being the cyclists 'work place'. We live in a very litigious society, so asking before doing so here, would be a wise decision.

I wouldn't post here - no sense in upsetting the equilibrium - however, if I was able to take the photo whilst I was on public land and they were not in a place where they could expect privacy, I'd sell it to whoever I wanted, and fight for my rights. There are different issues if I wanted to use it commercially (and selling the photo is not using it commercially), because then I'd need a model release.

[Longshots]

ah well Rob - while you might be in your rights to shoot on public land (of course checking that it is just that), then while you might be well within your rights to shoot. What you may then run into (as this is the wonderful basis of most event restrictions) where "they" catch you is the Intellectual Property of the Logos involved in both of the event and the sponsors. Which then restricts your ability to sell the image for commercial use. Again there is of course provision for the exception of news use.

[farmer_rob]

Yes, but I excluded commercial use - that is a whole different can of worms. However, I believe "incidental" use of trademarks etc is not actionable, especially if I am not trying to use the image commercially in a field where those trademarks apply. Also, trademark law (which covers logos etc.) is an entirely separate issue to copyright - lumping the two together as "intellectual property" can lead to confusion.

[ricktas]

I agree that strictly speaking, you can photograph them, and possibly use the photos by selling them. However I would be asking permission from the organisers, in writing, before the event, cause the last thing anyone needs/wants is to pay legal costs associated with any action taken. Why not just get it in writing from the organisers..first!

[kiwi]

maybe because if you ask and then they say no they have effectively denied you permission and you have not much else to stand on apart from indignation ?

[Scotty72]

Selling a photo to a newspaper is not commercial use.

If you're on public land, and the photo is legal (not indecent etc), I say snap away - the press, paparazzi etc certainly do.

[Longshots]

Think you'll find that I did say that news was excluded from being described as commercial use.

And yes the logo issue is certainly confusing, but I can assure you that big organisation against small individual - muscling the point is what "they" depend on doing.

So sure snap away, just dont take too many risks in trying to make some money out of it. Wasnt that the point of the original question. Commercial often does mean making a profit from the sale of the images - not necessarily in the end use - a point often missed by many.

[farmer_rob]

William, I know you are offering sensible and experienced advice, and caution is the sensible step here. However, when we all take the cautious approach, we lose our rights.

... Commercial often does mean making a profit from the sale of the images - not necessarily in the end use - a point often missed by many.

I beg to differ - I think you will find that legally "commercial usage" does not include sale of the image itself - profitably or otherwise - in the context of copyright and photography. (See 4020's view here. 4020 also note that Australia's trademark laws are not as rigid as the US laws, and a lot of cases that get up there would not work here. Remember also the "Streisand Effect" - muscling an individual to protect corporate rights may bring unwanted bad PR.)

[Longshots]

William, I know you are offering sensible and experienced advice, and caution is the sensible step here. However, when we all take the cautious approach, we lose our rights.



I beg to differ - I think you will find that legally "commercial usage" does not include sale of the image itself - profitably or otherwise - in the context of copyright and photography. (See 4020's view here. 4020 also note that Australia's trademark laws are not as rigid as the US laws, and a lot of cases that get up there would not work here. Remember also the "Streisand Effect" - muscling an individual to protect corporate rights may bring unwanted bad PR.)

hey Rob I dont think I've ever said that I've ever taken the cautious approach

Look I see your point, but as you've pointed out, my experience is that these type of organised events rely on using their considerable might to ensure that they protect what they see as theirs - which is what I've been saring. Doesnt mean to say that its my personal belief, because it isnt

Law is as I'm quite sure you know (as you seem very very versed in this area) is not black and white, but becomes a case by case interpretation (boy, I sound repetitive on this description). So in many ways there is little point in referring to 4020's website, because as I pointed out quite recently, Andrew spent a mere 6 months as a practising lawyer, so while its a great interest, great passion and great commitment on his part, its not a situation that his advice is always black and white. People like these publicly accessible events use their might and use a great deal of bluff to try and assert their " rights ". They may be right and they may be wrong - but they also have the financial clout to pursue their case. And I wouldnt want to advise someone to go for it, when I personally have been stopped on the basis of shooting places/people with logos - I'm not a lawyer, and nor do I want to be on the end of an expensive legal case (even if I'm sure that the law could be on my side).

Now if you just humour me for a moment and go back to what the OP actually asked which was - to explain what were exclusive rights meant in a public place - they were from what I understood asking what the information was on these type of claims. Which has been answered. So to contest whether we should all take risks or not, wasnt I thought ever part of the equation.

If I hadnt taken risks, I would not have the experience I do And I've never been one for letting go and rolling over when it comes to giving up my rights. Almost 20 years of lobbying and becoming a total pain in the arse to some organisations, proves I've never been cautious. Please dont misinterpret my advice on information and knowledge I have at hand, with my approach to life

[Scotty72]

It is simple. You, or a paparazzi, standing in a public place, snap a picture of anyone walking, running in a race etc. are quite entitled to sell it, burn it etc.

If what you are saying were even remotely true, the lawsuits would be flying daily from anyone of a thousand celebs who have a camera stuck in their face everyday.

This, the the purpose we are talking about, is not commercial. Commercial is, for eg, when you take a picture of Rick and use that commercially (eg. Rick's photo on a pack of smokes). Do that and you'll get sued (as Ian Thorpe did to Telstra). However, when Warnie was photographed from a public place having a smoke despite being sponsored by Quit Victoria, he soon found out that he had no legal recourse despite the fact that a magazine made the photographer much richer.

It really is so simple.

If I see you doing something really embarrassing in public, out comes my camera and if the mags wanna give me $10,000, I get a holiday to Disneyland while you get to please yourself.

[Longshots]

It is simple. You, or a paparazzi, standing in a public place, snap a picture of anyone walking, running in a race etc. are quite entitled to sell it, burn it etc.

If what you are saying were even remotely true, the lawsuits would be flying daily from anyone of a thousand celebs who have a camera stuck in their face everyday.

This, the the purpose we are talking about, is not commercial. Commercial is, for eg, when you take a picture of Rick and use that commercially (eg. Rick's photo on a pack of smokes). Do that and you'll get sued (as Ian Thorpe did to Telstra). However, when Warnie was photographed from a public place having a smoke despite being sponsored by Quit Victoria, he soon found out that he had no legal recourse despite the fact that a magazine made the photographer much richer.

It really is so simple.

If I see you doing something really embarrassing in public, out comes my camera and if the mags wanna give me $10,000, I get a holiday to Disneyland while you get to please yourself.

Well I make my full time living out of what I'm talking about Scotty. Now I dont mind having a difference of opinion, but I do take exception to you saying words "if what you're saying is remotely true" etc etc.

The detail of the question is there at the beginning, its a scenario that's increasingly common - that was what I'm referring to, not some simplistic scenario that you are suggesting (which btw you're probably quite correct in believing to be true - unfortunately zero relation to the topic and what I'd said) I'd suggest you reread it and then perhaps that would put the answers in context for you.

[Scotty72]

If you say so...

[Kym]

Chill guys!! This is on the edge of personal attack. STOP

[farmer_rob]

Sorry William if I offended, I was just trying to say I thought your advice sensible. I still think there is an argument that says fighting for rights at times overrides sensible even if it costs a lot (I've been watching too much of the Gandhi documentary on the ABC).

As I understand it, a lot of the law surrounding use of images of sportsmen and women has not been strongly tested. The ABC law report had an issue on it about 18 months ago, but I don't have a link to the transcript. There are a couple of key cases including the use of an image of a cricketer (Ricky Ponting from memory) on the cover of a book.

I must say I side with Scotty (in a non-confrontational sense ) - if I had the right image, taken from public land, I'd take the money and if necessary test the law.

I don't see (as per the question originally posed) how an exclusive agreement that does not involve the person taking the picture can be enforced against him/her as long as it is not a) commercial use and b) is taken from land not controlled by the parties to the agreement.

[MarkChap]

I really think that the OP was asking about the ability to sell the images to the competitors.

Does it mean that entrants are denied purchasing or obtaining photographs from some organisation other than the 'official photographers'? I assume the event organisers would be prevented from promoting another source of photographs. Does it prevent other organisations or individuals from taking photographs? Does it prevent another organisation or individual from somehow promoting the fact that photographs of the event are available whether for fee or free?

[Longshots]

NO its all OK seriously I wasnt offended by anyone

I thought this was about a point of discussion about shooting an event which is in a public place - and my responses were all about that. I'm not disputing wether you can shoot in a public place or not.

But its all good Kym, I havent taken any of this personally other than to stipulate that the question has been posed for discussion and there is a big difference between what we'd all like to happen and what happens in practice - and thats what I'm trying to communicate - all of which is being done with a good sense of humour - no problems from my side

I'm simply saying that in practice what Rob thinks should not be able to happen - actually does. I dont agree with it. Just passing on what, and trying to explain why. Ask anyone that shoots motorsports F1, etc just how tight those organisations have managed to grab a strangle hold on imagary, and how they use (rightly or wrongly Rob) the control based on using and reproducing corporate logos. Basically dont shoot the messenger - just telling what happens - surely Kiwi wants to say something, because he will I'm sure back the motorsport "control" .

Its ok to disagree though, just bear in mind that I'm personally offering advice on what happens within my experience and not giving a personal opinion.

[Scotty72]

That is different. If you are trying to sell shots of F1 (or whatever) and try to pass it off as being endorsed by the organisation or use their logos in promoting it, of course they can go after you.

But, if you don't try to do that; if you just say, hey here is a picture that just happens to be of X and don't try to 'pass off' = no probs.

[farmer_rob]

Wiiliam - understood. And experience often trumps theory . (I am sure what you suggest happens. What worries me is that they get away with it, possibly because they have deeper pockets rather than legal validity.)

Taking Mark's comment into perspective WRT the OP, I think that the competitors would be breaking the terms of their participation to buy from an unauthorised third party. I don't see how this can affect the third party seller, but it may not be good for business.

[Longshots]

That is different. If you are trying to sell shots of F1 (or whatever) and try to pass it off as being endorsed by the organisation or use their logos in promoting it, of course they can go after you.

But, if you don't try to do that; if you just say, hey here is a picture that just happens to be of X and don't try to 'pass off' = no probs.

Well actually I'm sorry but thats what I'm trying to tell the forum; thats not true. And they (from what I've been told directly by colleagues involved) F1, do chase it up. Like I keep saying, in this situation, its one thing to take the shots, its another to sell them.

[Scotty72]

Well actually I'm sorry but thats what I'm trying to tell the forum; thats not true. And they (from what I've been told directly by colleagues involved) F1, do chase it up. Like I keep saying, in this situation, its one thing to take the shots, its another to sell them.

I would like you to point me to even 1 case where the F1 has done this (that didn't involve theft of intellectual property eg. improper use of logo in a commercial sense)