Archived posting to the Leica Users Group, 2013/05/26
[Author Prev] [Author Next] [Thread Prev] [Thread Next] [Author Index] [Topic Index] [Home] [Search]In the US which is where this is taking place I know that the issue of "reasonable expectation of privacy" REOP, can get complicated. In the past a case was successfully made that in a persons backyard covered by trees they had REOP. And they won the case. And this was repeated. Front yard no REOP. Back yard yes. But what's interesting is these were normal run of the mill people. Turns out if you are a person in the public eye. A movie star etc you do not have REOP in your back yard. You should be expecting a photographer in every tree with whatever lens they won on ebay that week. So the issue can be if you are Joe Smo or Brad Pitt; where your REOP boundaries lay. Me I'm ok with that. And as that's what the law says and how its practiced than that's a nice coincidence. On 5/26/13 8:53 PM, "Tina Manley" <images at comporium.net> wrote: > That is certainly a very good definition of the law! As I expected, it is > the telephoto lens and the expectation of privacy that are crucial to > determining if the photos are invasion of privacy. I think they are! > Besides, they are not that interesting - a violation of artistic privilege > ;-) He seems to have a good publicist which is the most important element > of being successful these days! > > Tina > > > On Sun, May 26, 2013 at 7:10 PM, Bryan Caldwell > <bcaldwell51 at earthlink.net>wrote: > >> I hope all will forgive my longtime absence from the LUG - actually, more >> silence than absence, but as a lawyer and law professor in California I >> might be able to shed a little light here. Keep in mind that the U.S., >> like >> Great Britain, is a common law country - not everything is statutory - so >> what seem like simple questions often have very indefinite and complex >> answers. Civil liability can be imposed by statute, but it also can arise >> through the common law history of court decisions. And, even if imposed by >> statute, the statute in question is subject to constitutional challenge. >> These types of cases have often ventured into First Amendment issues of >> both freedom of speech and freedom of the press. Also, the case in >> question >> is in New York and this type of liability (assuming we're not venturing >> into copyright issues) could be drastically different from state to state. >> But, it wouldn't surprise me if California and New York had very similar >> law in this regard. >> >> I can only speak to California law. In the year following the death of >> Princess Diana, the California Legislature enacted California Civil Code >> section 1708.8 (the current version went into effect two years ago), >> which, >> so far, has been upheld by the California courts. Keep in mind that >> California is a hotbed of Paparazzi activity. 1708.8 has two relevant >> subsections which are interrelated . Pay very close attention to the exact >> language: >> >> (a) A person is liable for physical invasion of privacy when the defendant >> knowingly enters onto the land of another person without permission or >> otherwise committed a trespass without permission or otherwise committed a >> trespass in order to physically invade the privacy of the plaintiff with >> the intent to capture any type of visual image, sound recording, or other >> physical impression of the plaintiff engaging in a personal or familial >> activity and the physical invasion occurs in a manner that is offensive to >> a reasonable person. >> >> (b) A person is liable for constructive invasion of privacy when the >> defendant attempts to capture, in a manner that is offensive to a >> reasonable person, any type of visual image, sound recording, or other >> physical impression of the plaintiff engaging in a personal or familial >> activity under circumstances in which the plaintiff had a reasonable >> expectation of privacy, through the use of a visual or audio enhancing >> device, regardless of whether there is a physical trespass, if this image >> could not have been achieved without a trespass unless the visual or >> auditory enhancing device was used. >> >> The meaning of the "vague" terms, "reasonable person, " "offensive," >> "reasonable expectation of privacy," etc., with regard to a particular set >> of facts, would likely be decided by a jury. >> >> So, the end result is that a picture of a protected activity taken with a >> telephoto lens (a "visual enhancing device") while not on the plaintiff's >> property, could still lead to liability if the picture could not have been >> taken without the telephoto lens without committing a physical trespass. >> For those who think this is all semantics, try writing a statute that >> takes >> into account all foreseeable possibilities and technologies. It's not easy >> and the result is rarely simple. >> >> The other significant factor about section 1708.8 is that it can result in >> treble damages, a civil fine of $5,000-50,000, punitive damages (when done >> commercially) and disgorgement (to the plaintiff) of any resulting profits >> from sale of the images. >> >> But, having said all that, it still would appear to me that, under the >> right circumstances, this statute might be very susceptible to challenge >> as >> violative of the First Amendment. For some time in the U.S., invasion of >> privacy actions have been on the wane in favor of freedom of speech and >> freedom of the press. >> >> >> Sorry to go on so long, >> >> Bryan >> >> >> On May 26, 2013, at 2:51 PM, George Lottermoser <imagist3 at mac.com> >> wrote: >> >>> >>> On May 26, 2013, at 4:08 PM, Bill Pearce wrote: >>> >>>> this could result in new case law that restricts all our options. >>> >>> yup. >>> stepping up to and over a line >>> is pretty much where every "law" has come from. >>> >>> Regards, >>> George Lottermoser >>> george at imagist.com >>> http://www.imagist.com >>> http://www.imagist.com/blog >>> http://www.linkedin.com/in/imagist >>> >>> >>> >>> >>> >>> >>> _______________________________________________ >>> Leica Users Group. >>> See http://leica-users.org/mailman/listinfo/lug for more information >> >> >> _______________________________________________ >> Leica Users Group. >> See http://leica-users.org/mailman/listinfo/lug for more information >> >> > -- Mark William Rabiner Photography http://gallery.leica-users.org/v/lugalrabs/