Nope. Based on personal experience, and they are not "opinions", its business practice as a professional.
In that case, tell me if your practice has ever encountered a successful court judgement by someone who sued for using his photograph without consent. I doubt so. If not, then its just industry practice, which may or may not be founded in law.
For example, it is an industry practice for security guards to stop photographers from taking photographs of their buildings and it is an industry practice for them to say that management approval is required before photographs may be taken, even though we all know that they do not have a legal right to do so.
Erm... do not confuse State laws with Federal laws. The Federal law (as a country) did not have such provision. If you are only quoting from the law of CA, then it applies specifically to the state of CA. Model release is applicable anywhere, only if you want to apply it or not. Its porbably not important to you until someone files a claim.
I have not confused State law with Federal laws - read my comment again when I said that similar provisions probably exist in other states as well. You made a categorical statement that such rights are not legislated, I am pointing out to you that there is. Besides, even if there is no legislation, there is a good chance that case law exists in those other states. Note that Singapore has neither.
And since I am not contesting that such rights exist in the United States anyway - I won't dweel further on the laws in US as I do not know enough about it anyway, and it is not relevant as I intend to focus on Singapre laws anyway.
This is nothing about "privacy laws" or "torts, its simply "rights of usage".
There is no such cause of action as "rights of usage" unfortunately. Hence I doubt you can sue by asserting "right of usage".
Good point about the US being a sue happy country. But if you publish my likeness and I am not in a public place, I can sue you for usage of my likeness, even in Singapore for wrongful usage of my property, i.e. my likeness to sell a product I did not endorse (your print/skill/name/etc). You simply cannot publish anyone's picture as you please even if there were no malicious intent.
Yeap, sure you can sue, but I doubt you will succeed, simply because you have sitll not failed to show a cause of action on which you are basing your claim on for use or selling of a photograph per se. If I use your likeness to sell a product you did not endorse, yes that is a cause of action - and that was the basis of the Chaim See Tong case, where his photograph was used to promote a restaurant - in that case, the cause of action was not "model releases" or "rights of usage", but an established action called defamation - the court held as follows (extracted).
High Court said:
the photographic portrait suggested that Chiam consented to the use of his photograph for publicity, either for gain or to sponsor a private restaurant and that he had done so by taking advantage of his position as a Member of Parliament and also for the benefit of promoting himself as an advocate and solicitor. In view of all the circumstances, all the advertisements were defamatory of Chiam. The restaurant used the photograph to attract customers to the business of the restaurant and wrongfully appropriated Chiam’s reputation both as a Member of Parliament and an advocate and solicitor for commercial purposes.
However, I am referring to the selling or publication of photographs per se. For example, if i take a photo of you, and you did not consent, and I sold it for S$100 to some guy, or if I published it per se, without any indications or product endorsements or in a way that was defamatory - then you have no cause of action against me.
Actually, I felt that you were the one who thought things were easy and hence dispense with necessary practice. To put it simply, you are using "my likeness" without "my permission". Just because you take my pictures do not give you the right to use it in any way you please, and therefore, I will have grounds to obtain compensation. My grounds of claim is simply this: Using my likeness without my consent IS an infringement. Period.
Actually, I am not taking things easy, I spent substantial time doing legal research on this point before coming to my conclusion; and I am always open to anyone who is able to rebutt my conclusion by showing that I am wrong. With all research, there may come lapses, and if someone can show me a case authority or legal reference showing an alternative view, I'm more than happy to consider it and see if it changes things - in fact, I would welcome these input as it may help to consider things better.
You keep asserting that you will have rights to obtain compensation, but still, you are still not able to provide me with concrete references other than your bare assertion. As for "infringement" what infringement are you referring to? You can't infringe something for which there are no rights on. And infringement is not used in vacuo, typically referring to either copyright infringement or infringement of some other rights.
A cause of action is something which is founded on clear legal principles, or case law, if you dont have any, you dont have a cause of action.
Some examples of causes of action are : contract (breach of), tort (nuisance, defamation assault, false imprisonment, ip infringement, breach of confidential information etc), breach of statutory duty (these are imposed by legislation) etc. I'm sorry, but you can't just make up a cause of action when none has been established.
thanks for the quote but I would prefer that you quote in simple English. I am a professional photographer who knows my practice, not an academic who research on chapters and sections. Thats why I hire a lawyer for.
Alright, I apologise for that, I was basically stating that an application can be made to dismiss the action on the grounds that it discloses no reasonable cause of action.[/quote]
Just because you can argue does not mean it is legit. the law did not state something simply meant you are not breaking the law, but it does not mean that you are not infringing my rights/privacy. To use your argument: the law did not state that I cannot spit on you, so therefore I can and I would not bare any consequences if I do.
Yeap, and just because you can state "rights of usage" does not mean that it is legit. As I have said before, the law (both legislated laws and case law) must be established for BOTH criminal and civil actions. If there is no case law or legislated provisions, you will have serious obstacles trying to create a new cause of action.
As for your spitting example, actually there is a legislation which will covers that; see the following:
Penal Code said:
Force.
349. A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling:
Criminal force.
350. Whoever intentionally uses force to any person, without that person’s consent, in order to cause the committing of any offence, or intending by the use of such force illegally to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
That is because most in Singapore (and even elsewhere) do nit know that they can and should be compensated for such usage.
Actually, I think a lot of people in Singapore think they can be compensated by such usage, when it may or may not be true. I would reckon that the majority of photographers and poeple in the industry think that there is such compensation available when the legal strength of such a case is actually quite in doubt.
Your familiarity with the law implies you are either a law student or perhaps a lawyer. However, knowing provisions and legislation sometimes do not cover special situations that applies to specific profession. Particular being a photographer in singapore since most are either freelancers who otherwise have a "proper" job, or simply enthusiasts, there is no professional body to help to disseminate or govern proper practice of the trade. Law makers will also overlook since it is such a negligible percentage of the workforce but it does not mean that a model cannot make a claim if some rogue photographer decides to cash in on the model's likeness without duly compensated.
New causes of action are typically created based on analogy with existing causes of action. However, right now, I can't even think of any analogous causes of action which an action for the act of selling a photograph of a person without his consent, can be based on.
I'm not saying that the model cannot make a claim - anyone can make a claim by filing an action in court; I am just saying that he/she will have a big legal battle ahead of him/her especially if he/she wants to win. And there are special lawyers and laws for certain fields of industry, it is not as 'general' as you may think it is.