Join Rangefinder and WPPI as we kick off our 2021 Reset Series. In January, we go Back to Business with a look at copyright, contracts, taxes and other unglamorous but all-too-important aspects of running a business. Here, our legal writer breaks down a recent high-profile case about taking photos on private property. When is it considered trespassing and when is it considered newsworthy?

Whether or not a photographer can capture and publish a photo of a subject without their consent can depend on the purpose for which the photo is being used. In particular, newspaper photographers are allowed to capture images from public rights-of-way or to take photos to document a newsworthy event. But what happens when a photographer takes photos on private property? At the root of this question is copyright infringement, and it is the basis of an ongoing lawsuit filed by Missouri-based couple Mark and Patricia McCloskey, a.k.a. the “gun-toting couple.”

[Read: Photographer Bills Gun-Toting Couple for Using Viral Image, Then They Sue Him]

During a Black Lives Matter protest in June, United Press International (UPI) photographer Bill Greenblatt captured a photo of the McCloskeys on their front lawn wielding firearms at protestors. As we reported back in November, the McCloskeys are suing both UPI and Greenblatt, alleging that the photo, which went viral, was taken on their private property. This suit came after Greenblatt billed the couple for using the viral image of themselves without his permission, citing the couple’s usage as a “clear-cut case of copyright infringement.”

[Read: What Photographers Need to Know About Copyright Law]

Photography from Public Rights-of-Way versus Private Property

If a photo is taken on private property, it can amount to trespassing. However, a photo taken on public property of private property can be perfectly legal.

The McCloskeys are accusing Greenblatt of trespassing on their private property since he allegedly “entered and remained upon land legally owned” by them when he took the photo. The question is whether a sidewalk in a gated community is publicly or privately owned. Regardless, the couple is asking the court to ban the use of the photo and to transfer ownership of the image to them, along with any others captured from their property.

How Usage Effects Photos of People on Private Property

What happens if the photographer profits from the photo? The McCloskeys contend that Greenblatt and UPI have used the couple’s publicity rights, without obtaining consent, for their commercial advantage by selling and offering for sale “t-shirts, masks, and other items,” and licensing “photographs baring the [McCloskey’s] names, images, likenesses, identities and personas.” The suit also names Redbubble, an online marketplace that prints custom products, for selling merchandise with the couple’s image. The merchandise baring the image often includes “mocking and pejorative taglines or captions,” which has allegedly caused the couple “humiliation, mental anguish and severe emotional distress.”

[Read: Small Claims for Copyright—The CASE Act Becomes Law]

While the McCloskeys allege that the use of the viral photo has contributed to their “national recognition” and “infamy,” the couple has not shied away from the fame. In August, the McCloskeys earned a spot at the Republican National Convention where they spoke about gun rights and property rights. In September, the couple caused a social media frenzy by signing and handing out personal greeting cards featuring the photo, captioned “Patty & Mark McCloskey v. the Mob.”

When, in September, Greenblatt sent the McCloskeys an invoice for their unauthorized use of the photo on 1,000 Christmas cards, he cited the Copyright Act and asked for $1,500. Under the Copyright Act, a copyright owner is entitled to recover “the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement.”

Actual damages can be hard to prove. How do you really know how many items you would have sold, or how much money you would have lost as a result of the infringement? Since Greenblatt and UPI were using and licensing the photo for commercial gain, the amount Greenblatt typically receives for such licensing could be his actual damages. However, Greenblatt has provided no evidence of what this licensing fee is, other than quoting $1,500 as a “normal charge for an image such as [this].” Something important to note is that the McCloskeys did not make any profit off of these cards; they handed them out for free. It is hard to determine whether the $1,500 is a fair price without any idea of Greenblatt’s licensing fees.

The ultimate question remains in this case is: Who has ownership rights over the photo?

Remember, photojournalists are allowed to capture images from public rights-of-way or to take photos to document a newsworthy event. Whether one of these exceptions applies, giving Greenblatt and UPI ultimate ownership of and rights to the photo, will be up for the court to decide. As of now, the case is still pending.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm at Stark.Law LLC.

This article is for informational purposes only. Contact a lawyer for legal advice.