Use of photos in documentation?

Subject: Use of photos in documentation?
From: "Hart, Geoff" <Geoff-H -at- MTL -dot- FERIC -dot- CA>
To: "TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Mon, 25 Mar 2002 08:42:45 -0500

Barbara Yanez wonders: <<Are there any legalities to using photos (of
people) in documentation?>>

Enough legalities that you should hire a lawyer if you intend to proceed.
There's a delicate and hazardous balance between right to use (e.g., you
can't expect privacy in a public place if you're a celebrity) and right to
privacy (e.g., you can't legally use my photo to endorse a product without
my permission).

The latter's particularly problematic: consider, for example, the fact that
if you took my photo while I was using your product and used my satisfied
smile to advertise how good the product is, you might have entirely
misrepresented my experience with the product (I might be smiling because I
no longer have to use it!) and you might be trying to avoid paying me
royalties for the use of my photo. Both could get you in hot water. Along
these lines:

<<The software that I am documenting is one which facilitates the processing
of police lineups (mugshots, etc.)>>

That's particularly perilous. Let's say someone sees a picture of someone in
the lineup, makes the logical but entirely incorrect assumption that this
person is a criminal, and proceeds to discriminate against them (e.g., not
hiring them or actually firing them), and this information comes out in a
subsequent wrongful dismissal lawsuit. Guess who's going to be sued? The
plaintiff, obviously, but a good lawyer could drag you into the case too.

<<You may ask, why can't I get photos of in-house personnel and get their
permission to use them? The reason is that in a list of lineup photos, there
are so many that by the time I did that I would never get the manual

My feel for this is that you don't really have any alternative to using
in-house staff unless you have the budget to hire actors. Even then, you'll
need to make the context very clear in your contract with the subjects so
they can't subsequently claim that you deceived them.

<<For other software which includes an occasional photo, I was told by an
SME who is no longer here that I could use photos off of FBI and other
police "wanted" sites, as those photos are "in the public domain.">>

Again, you better check the legalities with a lawyer. Some of these people
may have been wrongfully accused, or may subsequently have served their time
and been given a clean slate. Moreover, photos posted on a Web site are
unquestionably not in the public domain; they are the property of the
photographer (who might want to resell them) or the site owner (if they
bought all rights from the photographer). Never use something off the Web
without the permission of the copyright holder--who may not be the person
publishing the photo.

All this will obviously take more time than simply using whatever photos
come to hand, but it's safer and more ethical.

--Geoff Hart, FERIC, Pointe-Claire, Quebec
geoff-h -at- mtl -dot- feric -dot- ca
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