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Re: [OM] Nathan's PAD 30/10/2010: cute Danish couple

Subject: Re: [OM] Nathan's PAD 30/10/2010: cute Danish couple
From: John Hudson <OM4T@xxxxxxxxxxx>
Date: Tue, 02 Nov 2010 07:45:24 -0300
I re-read this sentence and wondered:

"If it can be argued, even in the flimsiest way that the image will be sold 
as an artwork of for public interest, then there is no commerciality" [the 
"of" should be "or" ????]

If I sell an image and claim that it is a work of art am I to assume that I 
am not engaging in a commercial activity?

I wonder what Bob Whitmore thinks. He is selling his images on line and over 
the counter and I'm sure that they can be classified as works of art or 
"artwork".

Is he not engaged in a commercial activity ?

jh

----- Original Message ----- 
From: "Andrew Fildes" <afildes@xxxxxxxxxxxxx>
To: "Olympus Camera Discussion" <olympus@xxxxxxxxxxxxxxxxx>
Sent: Sunday, October 31, 2010 7:26 PM
Subject: Re: [OM] Nathan's PAD 30/10/2010: cute Danish couple


> Agree with other comments about conciliation but the law is very clearly 
> defined. It's common law and ironically, common to most English-speaking 
> countries. The concept of public gaze specifies that if you are in a 
> public place or, in many cases, visible from a public place, then you 
> cannot control how others see you - or photograph you. This has been 
> confirmed by many cases, most of which turned on the intent of the 
> photographer rather than the right to photograph. Common law has to be 
> quite specifically suspended by legislation in order to make photography 
> illegal, as in the case of military installations. There is some argument 
> here about National Parks administration charging for licences to 
> photograph commercially in a park as there is no specification 
> legislation, only a regulation which, of course, they wrote themselves.
> The issue has become clouded in recent times by paranoia over paedophilia 
> and terrorism. But to stop someone photographing children in public or to 
> bring them to a trial, you would have to prove the intent (mens rea) to 
> commit a malicious act. If your behaviour is provably unacceptable, you'll 
> probably be charged with some form of 'offensive behaviour'.
> Commercial use is also well defined. If the image is used to sell a 
> product as an inducement to buy, that's commercial. If it can be argued, 
> even in the flimsiest way that the image will be sold as an artwork of for 
> public interest, then there is no commerciality. Thus the test shots I 
> shoot for the magazine when I review a camera are considered to be 'in the 
> public interest', as is any general image used in journalism. Newspapers 
> would look a bit drab if that was not the case. Equally, any image I care 
> to put in a frame, hang on a wall and sell is equally protected - except 
> for those I took in France where the law has been changed. Still, if I 
> sell it here then the 'crime' has been committed here. Hmm, tricky.
> So relax Bob - anyone who is visible in any image that you sell as an 
> artwork has no call against you. Really.
> However, non of the above will stop you getting beaten up but it will be 
> helpful in court when they charge your attacker with assault.
> And in the squillion dollar law suit you bring subsequently.
> Andrew Fildes
> afildes@xxxxxxxxxxxxx
>
>
>
> On 01/11/2010, at 1:15 AM, Bob Whitmire wrote:
>
>> The real problem is that there's not a lot you can do with them after you 
>> take them unless you get a release from parent or guardian. There's some 
>> case law that suggests the photographer can display and even sell 
>> exhibition prints without any form of release, but if he or she strays 
>> into the commercial arena as defined by, say, selling the aforementioned 
>> picture to Cheerios, then the trouble will start.
>
> -- 
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