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As soon as we [easily] could, we did; and we continue to do it. Audio recordings of bid calling. Video and audio recordings of bid calling. Crowd pictures, aerial shots and video, staff and auctioneers in pictures, sellers/bidders/buyers in pictures, videos …

For that matter, people at auctions record video and take pictures frequently. They take pictures of the themselves, auctioneers, staff, each other and property in the auction. I first started to see auction attendees taking pictures and recording video at our auctions in the 1980’s.

With few exceptions, the issue of taking pictures, audio recordings and/or video is likely not addressed in any terms and conditions with the bidders, nor in the contract with the seller … nor in signage or other notifications for the general public.

These exceptions include that some auctions do have signs up noticing that pictures may not be taken or other media is limited (for instance, at some Amish auctions.)

Further, some sellers (and bidders/buyers) have voiced their displeasure with auctioneers recording pictures/audio/video — in their opinion being more concerned about publicizing themselves and the auction than conducting the auction.

Certainly taking pictures/audio/video at auctions is not a new phenomenon, as this technology has been around for decades; the issue today is this technology has matured and is now in the hands of almost everyone at an auction including the auctioneer.

Legally, it’s generally viewed that the First Amendment’s right to free speech (coupled with the Fourth Amendment) protects more than speech, inclusive of other communication such as pictures, audio, video — that is with reasonable restrictions (inclusive of signs which attempt to limit/prohibit) which necessarily do not create an undue burden on the recorder.

For those interested, the First Amendment Center provides a more detailed analysis of court cases and resulting opinions on this issue: http://www.firstamendmentcenter.org/photography-the-first-amendment/ As can be noted, “communicating” public (versus private) media is a material issue, which sharing public auction media on social platforms certainly appears to satisfy.

Is it prudent for an auctioneer to notice his seller(s) in the contract that media may be recorded at the auction for subsequent publicity? Further, should the terms and conditions for bidders/buyers include a disclosure (and possible release) regarding the auctioneer’s right to record and publicize media including their image, voice and/or motion? Maybe so.

Or, for any auctioneer (or seller) who wishes to limit pictures, audio and/or video, should signs be posted, or other disclosures be made, which alert auction attendees of such media limitations? Should the contract between the auctioneer and seller include such? Should the terms and/conditions reflect such? Yes, if this is the policy desired.

Lastly, do auctioneers have to be careful? Indeed they do. Anytime a seller feels the auction of their assets is running second to self-promotion, we’re inviting the seller to be unhappy and/or to take legal action. Foremost, our job is to satisfy our client, and self-publicizing should almost always — at most — be a subordinate goal.

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.