Be sure to check out PhotographyIsNotACrime.com

As a photographer, they do have the right to ban photos on their property, but it sounds pretty lame to stop people photographing cakes.

I would think they would be more worried about industrial spies snooping around to see how they are priceing and running their business.

You can photograph anything you want, regardless of copyright protection, period.  It’s not the capturing of images and video that requires a release to avoid a copyright claim – it’s the publishing of those captures.  And yes, posting them to Cake Wrecks would constitute “publishing”.  But simply the capturing of those photographs is NOT a violation of copyright, contrary to what many uninformed security guards and/or Safeway employees may believe.

Now, news media does not require model or “use of image” releases because media reporting is considered “newsworthy”, of benefit to the public rather than for commercial gain.  But if anyone PUBLISHES (not captures, but publishes) the images, it’s possible that a model release or property release might be required.

When I go out to capture spot news for a local paper, I have no requirement to collect model releases for use of the images because the only people publishing the images would be doing so editorially as news. However, when I shoot an image that is to be used commercially, any commercial publication of that image must have a model release on file or risk civil liability. This doesn’t just apply to the model I’m shooting, but to anyone else in the photo who is recognizable.  This isn’t required for me to TAKE the shot, but would be required for anyone PUBLISHING the shot.

For example, in addition to models, I shoot a lot of public and private events. Some time ago, someone producing a promotional DVD for Korn contacted me because I shot their most recent tour, and included a lot of crowd shots in my public gallery. He had plenty of performance shots, but needed crowd shots which were apparently in short demand. He specifically asked about one shot, but also wanted a few more for some kind of photo montage in his video. Now, there’s no way I’m going to have model releases on file for random crowd shots while I’m shooting a concert, so I told him this. I’ve fulfilled my obligation to my client by informing him that the images don’t have model releases on file. If I hadn’t, he could potentially sue me for “implying” that the photos either had releases or didn’t require them. Instead, I informed him that I didn’t have them, but wasn’t sure if he needed them. I think he does, but I’m not sure of the entire scope of his video, and besides – I’m not his lawyer. It’s not my job to inform him of his legal requirements; just to protect myself by clarifying that there is no implication that a release is available. Remember: I did not need a release to take the photographs – just to publish them. Now he (or rather, Sony, who is his client, and will ultimately be the “publisher” of the DVD) has the obligation to either obtain releases or to determine that they are not necessary – it’s not my responsibility once I’ve informed them of the status. I have the right to sell the images without release – just not to publish them.  YES, that means I can go out, take photos of random people or property, copyrighted or not, and SELL THEM.  I’m not liable until I publish them, unless I’ve violated someone’s privacy.

Privacy is another topic entirely, but in short I’m not violating someone’s privacy unless they’re in a place in which they actually have a “reasonable expectation” of privacy.  Generally, you’re safe if you shoot from a public space such as a sidewalk.  However, the exception to this rule is if you use special equipment (such as a telephoto lens) to get photos that would violate someone’s “reasonable expectation” of privacy.  An example of this would be using a long lens to shoot them in their home or while they enter their PIN at an ATM, etc.

Now, it’s worth mentioning that my posting the images publicly in my portfolio could potentially constitute “publication”, but is generally allowed under fair use because I’m not using the images to promote a product or service; they’re my portfolio as a demonstration of my work. This could be called “art”, in this example. This has been universally accepted as fair use of publication without requiring a release, though as a general rule I will still remove images if asked by a subject. (If memory serves, this has happened a grand total of one time in 10 years of shooting models and events.) I took the image down, and never heard another complaint from the individual. I’d rather remove one image than potentially end up with a lawsuit on my hands. It’s not like I lack a selection of portfolio images to choose from.

Another item of note: I have no obligation to collect model releases as the photographer, so long as I inform anyone I sell them to that the releases aren’t on file. Only the publisher of the images requires the releases to remain legal. As long as I don’t run afoul of privacy issues (example: shooting someone in their bedroom with a long lens, shooting someone entering their PIN at an ATM, etc.), almost any kind of shooting is legal in my state, which is California. Also, if individuals walk past the camera and are far enough as to be unrecognizable, a model release is generally unnecessary, even if it’s for commercial use – right to ownership of the use of one’s image only applies if you can actually recognize the individual in question.

One last thing: some states consider recording people on video (with sound) to run afoul of wiretapping laws, i.e. recording people’s voice without their consent. (This is generally only applicable in a state requiring all-party consent, and California is one such state.) Thus, this is a clear difference between photography and video that has a separate set of laws applied to it, if one is shooting with sound. Of course, if sound is not included in the recording, this distinction does not exist. Fortunately, many states are starting to recognize that there is a need to be able to record both video and sound in public spaces for the safety of the public, a la police overstepping bounds or giving inaccurate reports of what occurred. Assuming for the moment that the video remains unaltered and shows the whole story without creative editing (which unfortunately happens often enough to be a problem), police should have no concern of being recorded unless they’re not “doing things right”. But that’s not the world we live in, so we still have photographers, videographers and cell phone bloggers getting arrested for recording police actions. It’s important that we as a society recognize that this sort of coverage is important to protect all of us.

However, I’m getting a little off-topic at this point so I’ll get off my soap box. I hope my post helps to clarify. :-)

Also, remember that just because you have rights doesn’t mean they won’t be violated or that you won’t end up behind bars for taking photographs legally. Think carefully how far you want to take things, and seriously consider backing down to avoid confrontation if you don’t really need the shot. I hate paranoid morons who think they can dictate their own inaccurate beliefs of the law to me, but on the other hand, I’m not really interested in risking personal injury or having my gear destroyed by some asshat over a photo that really makes no difference. Sometimes it pays to just back down and wait until the asshat leaves. ;-)

BUY THE CAKE, then take it out of the doors. Since it’s now yours, you can photograph it to your delight.

Not once have they noticed I don’t seem to be wearing a wedding ring.