(765 ILCS 1075/5)
Sec. 5. Definitions. As used in this Act:
“Commercial purpose” means the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.
“Identity” means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.
“Individual” means a living or deceased natural person, regardless of whether the identity of that individual has been used for a commercial purpose during the individual’s lifetime.
“Juristic person” means a partnership, trust, estate, corporation, unincorporated association, or other organization capable of suing and being sued in a court of law.
“Name” means the actual name or other name by which an individual is known that is intended to identify that individual.
“Person” means a natural or juristic person.
“Work of Fine Art” means (i) a visual rendition including, but not limited to, a painting, drawing, sculpture, mosaic, videotape, or photograph; (ii) a work of calligraphy; (iii) a work of graphic art including, but not limited to, an etching, lithograph, serigraph, or offset print; (iv) a craft work in materials including, but not limited to, clay, textile, fiber, wood, metal, plastic, or glass; or (v) a work in mixed media including, but not limited to, a collage, assemblage, or work consisting of any combination of items (i) through (iv).
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/10)
Sec. 10. Recognition of right of publicity. The right to control and to choose whether and how to use an individual’s identity for commercial purposes is recognized as each individual’s right of publicity.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/15)
Sec. 15. Transferability, descendability, and divisibility. The rights under this Act are property rights that are freely transferable in whole or in part to any person either by written transfer, including but not limited to wills and trusts, or by intestate succession only to an individual’s spouse, parents, children, and grandchildren, except that the rights under this Act are not subject to levy or attachment and may not be the subject of a security interest. Nothing in this Section limits the ability of any party to levy, attach, or obtain a security interest in the proceeds of the rights under this Act or the proceeds of the exercise of those rights.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/20)
Sec. 20. Enforcement of rights and remedies.
(a) The rights and remedies set forth in this Act may be exercised and enforced by:
(1) an individual or his or her authorized

representative;
(2) a person to whom the recognized rights have been

transferred by written transfer under Section 15 of this Act; or
(3) after the death of an individual who has not

transferred the recognized rights by written transfer under this Act, any person or persons who possesses an interest in those rights.
(b) Each person described in paragraph (3) of subsection (a) shall make a proportional accounting to, and shall act at all times in good faith with respect to, any other person in whom the rights being enforced have vested.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/25)
Sec. 25. Termination of rights of deceased individual. The rights set forth in this Act terminate if:
(a) a deceased individual has not transferred his or her rights in writing under Section 15 of this Act; and
(b) the individual has no living spouse, parents, children, or grandchildren.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/30)
Sec. 30. Limitations regarding use of an individual’s identity.
(a) A person may not use an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act or their authorized representative.
(b) If an individual’s death occurs after the effective date of this Act, a person may not use that individual’s identity for commercial purposes for 50 years after the date of the individual’s death without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/35)
Sec. 35. Applicability.
(a) This Act applies to acts or events that take place after the effective date of this Act.
(b) This Act does not apply to the following:
(1) use of an individual’s identity in an attempt to

portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio‑visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services;
(2) use of an individual’s identity for

non‑commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign;
(3) use of an individual’s name in truthfully

identifying the person as the author of a particular work or program or the performer in a particular performance;
(4) promotional materials, advertisements, or

commercial announcements for a use described under paragraph (1), (2), or (3) of this subsection; or
(5) use of photographs, videotapes, and images by a

person, firm, or corporation practicing the profession of photography (“professional photographer”) to exhibit in or about the professional photographer’s place of business or portfolio, specimens of the professional photographer’s work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition has been given by the individual portrayed.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/40)
Sec. 40. Violations; monetary relief.
(a) A person who violates Section 30 of this Act may be liable for either of the following, whichever is greater:
(1) actual damages, profits derived from the

unauthorized use, or both; or
(2) $1,000.
(b) Punitive damages may be awarded against a person found to have willfully violated Section 30 of this Act.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/45)
Sec. 45. Establishment of profits. In establishing profits under paragraph (1) of subsection (a) of Section 40 of this Act:
(a) the plaintiff is required to prove the damages or gross revenue attributable to the unauthorized use; and
(b) the defendant is required to prove properly deductible expenses.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/50)
Sec. 50. Injunctive relief. Upon a showing of cause as required by Article XI of the Code of Civil Procedure for the issuance of injunctive relief, the court may issue such temporary restraining orders, preliminary injunctions, and permanent injunctions as may be appropriate under this Act.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/55)
Sec. 55. Attorney’s fees; costs. The court may award to the prevailing party reasonable attorney’s fees, costs, and expenses relating to an action under this Act.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

(765 ILCS 1075/60)
Sec. 60. Rights and remedies. The rights and remedies provided for in this Act are meant to supplant those available under the common law as of the effective date of this Act, but do not affect an individual’s common law rights as they existed before the effective date of this Act. Except for the common law right of publicity, the rights and remedies provided under this Act are supplemental to any other rights and remedies provided by law including, but not limited to, the common law right of privacy.
(Source: P.A. 90‑747, eff. 1‑1‑99.)

Effective December 1, 2009, the Mayor’s Office of Film, Theatre and Broadcasting is discontinuing its weekly permit viewing sessions. Due to increasing constraints on space and staff time and numerous reported thefts of documents, the agency will no longer provide courtesy copies for perusal by members of the public.

This is ridiculous. The permits could easily be scanned and sent out as a pdf via email, just like the letter below, which would completely eliminate all the issues put forth in the letter. Since the Mayor’s Office is unwilling to do this, you realize the logic of their decision is political: they want to ensure that FOR PROFIT film companies that use PUBLIC RESOURCES, including the Mayor’s Office, will be subject to minimum intrusions from the general public, including those who function under the Freedom of Press, namely journalists.

What’s the Mission of the Mayor’s Office:

As the first film commission in the country, the Mayor’s Office of Film, Theatre & Broadcasting is the one-stop shop for all production needs in New York City, including free permits, free public locations and free police assistance. The agency markets NYC as a prime location, provides premiere customer service to production companies and facilitates production throughout the five boroughs. Whether production companies are shooting a feature film, a commercial, a television show or a music video, the Mayor’s Office of Film, Theatre and Broadcasting serves as an invaluable resource to the New York City entertainment production industry.

“free permits, free public locations and free police assistance” Pardon me, but none of these are free. Taxpayers pay for the Mayor’s Office employees who issue these “free permits.” Taxpayers pay for the maintenance and approval of all “free public locations.” And taxpayers pay for the police force which provides “free police assistance.”

Since when do FOR PROFIT film companies get to usurp the rights of citizens, especially when it involves public domain spaces or public domain information? Filing a freedom of information letter to get information that, by the time the letter is addressed, becomes obsolete, is not a satisfactory balance of interests.

Shame on you Mayor’s Office!

============================

9 November 2009

To Whom It May Concern:

This Wednesday, November 11, 2009, please note that the Mayor’s Office of Film, Theatre and Broadcasting (MOFTB) will be closed for the Veteran’s Day holiday. As a result, permit documents for dates ranging 11/4/09 through 11/17/09 will be available for public viewing the following Wednesday, November 18, 2009.

Effective December 1, 2009, the Mayor’s Office of Film, Theatre and Broadcasting is discontinuing its weekly permit viewing sessions. Due to increasing constraints on space and staff time and numerous reported thefts of documents, the agency will no longer provide courtesy copies for perusal by members of the public.

New York State’s Freedom of Information Law (FOIL) provides a process for the review and copying of an agency’s records. Under FOIL, all requests for access to MOFTB records must be submitted in writing, either by letter or e-mail, to the agency Records Access Officer. In your request, please describe the records you are seeking as specifically as possible, including as much of the following as possible: types of documents, date, time, location, production title, and any other information that will enable the Records Access Officer to identify the record(s) you are seeking. Include how you would like to receive the requested information if your request is approved, or partially approved. Include a daytime phone number, in case the Records Access Officer has any questions about your request. Copies are available at the statutorily permitted duplication fee of $0.25 per page, by certified check or money order made payable to the NYC Department of Finance.

If you wish to view or photocopy MOFTB permits in the future, please submit your written request by:

Mail:

Records Access Officer
Mayor’s Office of Film, Theatre and Broadcasting
1697 Broadway, Suite 602
New York, NY 10019

Email:
FOIL@film.nyc.gov

Thank you for your cooperation.

Paparazzi and Privacy by Patrick Alach

A New California Law Places Paparazzi Under the Spotlight by Dionne Searcey, Wall Street Journal, October 29, 2009.

Assembly Bill 524

Privacy rights in general are under assault from many directions according to A. Michael Froomkin:

The Death of Privacy

“The right to privacy and respect for private lives of individuals and their families must be balanced against the right of the media to gather and report the news. The right of a free press to report details of an individual’s private life must be weighed against the rights of the individual to enjoy liberty and privacy.”

California Civil Code Section 1708.8 Modifications:

(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 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 auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

So let’s get this straight: If I am standing on a public street and a celebrity is visible from that public street, but the celebrity is on private property, then I am no longer allowed to photograph them? So merely being on private property, even though the celebrity is still visible from a public domain space, is now off limits because the image was captured using a long lens?

Uh, since when does any person have a reasonable expectation of privacy if they are clearly visible from a public domain space? Am I really breaking the law if I’m standing on a public sidewalk and can see a celebrity engaging in behavior that I decide to photograph? According to this law I am.

Uh, sorry, but a person “engaging in a personal or familial activity under circumstances” that are clearly visible from a public domain space surely isn’t entitled to a “reasonable expectation of privacy.”

A recent example might be Beyonce on the beach in Hawaii. Clearly Beyonce was on a personal vacation. While at the beach, she was buried up to her head in sand and then emerged covered in sand. The images were captured by island paps. Beyonce was certainly “engaging in a personal or familial activity” albeit on a public beach. Is she entitled to her right to privacy. Clearly not.

Fame boils down to one thing: recognition. Becoming famous means being recognized under any circumstances. Recognition does not end the moment you walk off the set or leave the recording studio. It’s 24/7. That recognition erodes your right to privacy. Why? Because what you do in public now qualifies as news. If Beyonce wasn’t in Hawaii yesterday and won’t be there tomorrow, guess what, it’s news. It’s not up to the celebrity to decide whether their activities are news or not. Once recognition is established, ANYTHING that celebrity does is news. Sorry, but that’s the nature of recognition.

If you don’t accept that fact, then pursuing projects that result in worldwide recognition will, beware, cause you endless angst.

(c) An assault committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h). (d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section.

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, instigates, induces, or otherwise causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section
3294.

(f) Sale, transmission, publication, broadcast, or use of any image or recording of the type, or under the circumstances, described in this section shall not itself constitute a violation of this section, nor shall this section be construed to limit all other rights or remedies of plaintiff in law or equity, including, but not
limited to, the publication of private facts.

(g) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity, the suspected
violation of any administrative rule or regulation, a suspected fraudulent insurance claim, or any other suspected fraudulent conduct or activity involving a violation of law or pattern of business practices adversely affecting the public health or safety.

(h) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a) or (b).

(i) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

(j) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose” means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted.

(l) For the purposes of this section, “personal and familial activity” includes, but is not limited to, intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of plaintiff’s private affairs or concerns. Personal and familial activity does not include illegal or otherwise criminal activity as delineated in subdivision (f). However, “personal and familial activity” shall include the activities of victims of crime in circumstances where either subdivision (a) or (b), or both, would apply.

(m) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Note to artists: make sure you sign a photo contract that stipulates how photos can be used once the initial use has passed, especially in the digital age….it’s up to you if you want to sell out for the publicity at the expense of controlling your likeness.

Read Lilly Allen’s rant

This Wild Girl’s a Homebody Now (NY Times’ article)

Police or any other government authority do not have the right to target the media with the express purpose of banning them from photographing in a public space if they are going to allow the general public to photograph without restriction as well. This is still a Democracy, ruled by a Constitution that guarantees certain rights, including Freedom of Speech in all its guises.

“Within a public forum, the scope of the media’s right to film is at least as broad as that of the general public. For instance, the government could not single out news cameras for removal (while continuing to allow the public to use cameras) as such action would likely be a content-based restriction that is almost never justified under the First Amendment. Thus, when a government official attempts to remove media personnel from a public sidewalk, the media personnel should (politely) inquire whether the ban extends to general public as well. If not, the government’s actions very likely violate the First Amendment. The government may, however, restrict speech within public forums provided that the restriction does not specifically target the media.”

What’s unacceptable is the security team being deployed to harass the photojournalist, apart from the celebrity, in order to physically prevent that celebrity’s picture from being taken in a public space. Security does not, according to New York Penal Code, have a right to harass the photojournalist, particularly when it involves “following such a person in or about a public space”.

I visited “The Bounty” film set yesterday in order to photograph Jennifer Aniston walking from her trailer to the New York Daily News’ building located at 450 West 33rd Street at 10th Avenue in New York City. Jennifer’s trailer was parked on the south side of 33rd Street, west of 10th Avenue. The Daily News building is located on the East side of 10th Avenue, so Jennifer was required to walk across the street to reach the film set inside the Daily News Building.

I parked my bike and stood on the Southwest corner of 33rd Street and 10th Avenue, waiting for Jennifer to either get in her car and being transported to the film set or see if she walked to set. Within five minutes, a large security team member walked up and stood within two feet of me. Why? So when Jennifer came out of her trailer he could proceed to stand in front of me in order to prevent me from taking a picture of her. Well, my friend, according to New York Penal Code, this is harassment in the first degree. You do not have a right to “intentionally and repeatedly harasses another person by following such person in or about a public place”.

So do me a favor, security team, protect your client but DO NOT HARASS me. You can stand around your client and create a wall of privacy to your heart’s content. But you do not have a right to use part of your security team to stand in front of me or use any other tactics that prevent me from taking pictures in public spaces. It’s harassment by law, and since we still live in a democracy, I respect you will follow the law. My rights do not end because your client is engaged in a for-profit venture in a public space. Head to the studio backlot if you can’t respect the law of photojournalists in public spaces.

Section 240.25 Harassment in the first degree

A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.

Section 240.26 Harassment in the second degree

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Section 1050.9

Restricted areas and activities.

1. No person, except as specifically authorized by the Authority, shall enter or attempt to enter into any area not open to the public, including but not limited to train operator’s cabs, conductor’s cabs, bus operator’s seat location, station booths, closed-off areas, mechanical or equipment rooms, concession stands, storage areas, interior rooms, catwalks, emergency stairways (except in cases of an emergency), tracks, roadbeds, tunnels, plants, shops, barns, train yards, garages, depots or any area marked with a sign restricting access or indicating a dangerous environment.
2. No vehicle, except as specifically authorized, may be parked on Authority property.
3. Photography, filming or video recording in any facility or conveyance is permitted except that ancillary equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid identification issued by the New York City Police Department are hereby authorized to use necessary ancillary equipment. All photographic activity must be conducted in accordance with the provisions of this Part.
4. No person may ride on the roof, platform between subway cars or on any other area outside any subway car or bus or other conveyance operated by the Authority. No person may use the end doors of a subway car to pass from one subway car to another except in an emergency or when directed to do so by an Authority conductor or a New York City police officer.
5. No person shall extend his or her hand, arm, leg, head or other part of his or her person, or extend any item, article or other substance outside of the window or door of a subway car, bus or other conveyance operated by the Authority.
6. No person shall enter or leave a subway car, bus or other conveyance operated by the Authority except through the entrances and exits provided for that purpose.
7. No person may carry on or bring to any facility or conveyance any item that:
1. is so long as to extend outside the window or door of a subway car, bus or other conveyance;
2. constitutes a hazard to the operation of the Authority, interferes with passenger traffic, or impedes service; or
3. constitutes a danger or hazard to other persons.

Nothing contained in this section shall apply to the use of wheelchairs, crutches, canes or other physical assistance devices.

No Photo Ban in Subways, Yet an Arrest
By JIM DWYER
Published: February 17, 2009

§ 51. Action for injunction and for damages. Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait, picture or voice in whatever medium to any user of such name, portrait, picture or voice, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article; nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait, picture or voice of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith; or from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith. Nothing contained in this section shall be construed to prohibit the copyright owner of a sound recording from disposing of, dealing in, licensing or selling that sound recording to any party, if the right to dispose of, deal in, license or sell such sound recording has been conferred by contract or other written document by such living person or the holder of such right. Nothing contained in the foregoing sentence shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal law or state law.