Increasingly, authors are responsible in every sense for advertising and promoting their own works. Also, most people carry a camera with them 24/7. It is not implausible that some time, an author might come across a photogenic person in a public place reading that author's book.
What a temptation!
The copyright of a photograph belongs to the photographer, doesn't it? Should one snap first, and ask permission later?
If you ask, and your reader says "Yes", must you get it in writing? Yes! But what if your reader says "No"? Alas, then you cannot use the shot. Readers have rights. Persons in the background also have rights. As discussed in a previous blog, graffiti artists whose "public art" might be on a building or subway wall in the background might also merit your consideration.
Legal blogger Terri Seligman writing for the law firm Frankfurt Kurnit Klein and Selz PC discusses copyright and subway advertisements.
Law School Exam Part 3: Real People Real Stuff (which is about adverts in subways that might or might not amount to a testimonial, and how to treat naming the person in the advert, depending on whether they are an actor playing a part or a real person.)
https://www.lexology.com/library/detail.aspx?g=787417a9-87ee-4294-ae09-e3b5a34e3ed6&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-10-26&utm_term=
What about if a fan takes such a photograph, and shares it with the author via email, private message, or on a social media site?
Even if my fan, copyright owner of the photograph she took at an airport or on a subway of a one-time World's Sexiest Man reading a paperback copy of one of my books gave me permission to use it on my website, could I do so?
Authors can extrapolate from the legal advice from David Oxenford writing for Wilkinson Barker Knauer LLP and the Broadcast Law Blog concerning things for authors to consider when podcasting in order to market books.
https://www.broadcastlawblog.com/2018/09/articles/more-podcast-legal-issues-remembering-sponsorship-identification/#page=1
The trouble with publishing a photograph with real people in the background is that it might or might not invade a real person's privacy. Think Love Actually and the airport scenes. Those background people would all have been paid extras with contracts and releases. Consider whether any two people might strongly object to being photographed together, even if their appearance in your publicity shot is incidental.
Finally, and nothing much to do with the topic, authors who own websites do not necessarily have to worry about complying with the ADA's web accessibility guidelines.
If this issue is a concern to you, and for more information, read the ADA Title III News and Insights Blog of Seyfath Shaw LLP written by Minh N. Vu.
https://www.lexology.com/library/detail.aspx?g=ea4fa4de-f75b-4e9a-95f4-0d8c9f7b79f9
All the best,
Rowena Cherry
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