Publication of Photographs: Is A Release Required?

There is no area of photography that is more controversial and unsettled among legal and photography professionals than the issue of when releases are required. Some believe that because of the ambiguity in the law, that releases are required if publication is intended under the premise that "it is much better to be safe than sorry". On the other hand there are those who contend that the First Amendment does not require a release if the intent behind publishing a photograph is to "inform" or to "educate". The difficulty is that it is not always easy to draw the fine line between what is newsworthy and what is not.

PHOTOGRAPHS OF INDIVIDUALS

The author and publisher in deciding whether to publish a photograph of an individual or group of individuals must be aware of the dangers that arise from an unauthorized use that relates to an individual's right to privacy and publicity. Individuals who lead public lives, such as public officials and celebrities, have restricted rights of privacy, but they usually have broader rights of publicity. State laws govern the right of privacy and the right of publicity. Therefore, the right of privacy and publicity law and its interpretation will vary from state to state. However, countervailing to an individual's right of privacy and the right of publicity is the First Amendment that provides that publication of an individual's image for newsworthy purposes is permissible.

The basic presumption underlining right to privacy laws is the protection of an individual from the disclosure of private facts. The general principles are that one who publicizes a matter concerning the private life of another is subject to liability for invasion of privacy if the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public. The right of publicity provides that an individual has the right to control the commercial use of their name, likeness or identity. While the right of privacy protects an individual from the disclosure of embarrassing facts, the right of publicity protects the individual from financial loss from an unauthorized commercial use of their name or likeness. As a general rule the right of privacy will only apply to a living person while the right of publicity may also apply to a deceased person.

GUIDELINES WHEN PUBLISHING PHOTOGRAPHS OF INDIVIDUALS

• Because there are many nuances to the right of privacy and publicity laws it is advisable to always obtain a written release from any individual that would be recognized in a photograph.
• Obtain a release even if the individual's image will initially be used for a newsworthy purpose in the event that you may want to use the individual's photograph for other trade or commercial uses.
• Don't forget that if the individual is a minor, you will need parental or guardian consent.
• Make certain you caption the photograph correctly.
• Be careful when cropping a photograph that you do not alter the context in which the photograph was taken.
• If you decide to use a photograph without a release make certain it was obtained without trespassing on private property, that it does not violate an individual's right of privacy or publicity or that it is protected by a First Amendment use.
• Releases are generally not required from people who are identifiable in a photograph of a street or public place, provided that the photograph is reasonably related to the subject matter and the identifiable people are not the focus of the photograph. An example of a permitted use would be a photograph of the Rockefeller Center Ice Rink that was used to illustrate a book about Rockefeller Center or about New York City attractions, even though many people may be identifiable.

PHOTOGRAPHS OF PROPERTY

Although property does not enjoy a right to privacy or publicity that there are other bodies of the law that might prohibit or restrict the unauthorized use of a photograph containing property. These bodies of law may include among others contract, trademark, unfair competition, copyright and trespass law.

The guiding principle, that of course is muddled with exceptions, is that as long as a photograph of private property is taken while the photographer is on public property or on property that is open to the public then it is permissible to publish that photograph without permission from the owner of the property.

However, there are exceptions where it may be necessary or advisable to obtain permission from the owner of the property. These exceptions may include among others, a photograph of (i) artwork displayed in a museum, gallery or other location, (ii) a well-recognized product, such as a Harley-Davidson motorcycle, where the manufacturer has been litigious with respect to commercial uses of photographs containing their product, (iii) a building where the building design is protected by a federal trademark registration - recently there was litigation involving a photograph of the Rock and Rock Hall of Fame, (iv) a "famous" pet such as Lassie, (v) interiors of private buildings and (vi) personal property, such as their clothing or jewelry, that could identify an individual.

PUBLISHING CONTRACT

A publishing contract should usually contains language in a "permissions clause" to ensure that the author is required to provide the publisher with written permissions to use any materials owned by another party. However, the scope of this clause will usually only relate to copyrighted material as it is not broad enough to ensure that the author obtains permission to use a photograph that could interfere with an individual's right to privacy and publicity.

Rule: Review the permission clause in your publishing contract to make certain it requires the author to obtain written permission to publish a photograph when such use could infringe any proprietary right or interfere with an individual's privacy or publicity rights.

The permissions clause should also be backed-up by "author representations and warranties" that provide that a photograph does not contain libelous or obscene material or that the publication of such photograph does not interfere with any copyright, trademark, privacy, publicity or proprietary right of another party. An "indemnity clause" should also be included in the publishing contract providing that in the event of a claim, action or proceeding based upon an alleged violation of the author's representations or warranties that the publisher will be held harmless.

Rule: Make certain the author obtains written permission to publish a photograph if such publication may interfere with an individual's privacy or publicity rights. A publisher should only rely on the indemnity clause an additional layer of protection. It is also advisable for the publisher to attach a sample of a pre-approved permission form to the publishing contract.

CONCLUSION

Regretfully, there are no guarantees that an identifiable person or owner of property in a photograph would threaten to or bring a legal action for publishing a particular photograph. Therefore, the only way a publisher can be almost risk free from such lawsuit is by obtaining a written release from any person(s) or owner(s) of property that appear in a photograph.

This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific publishing issues and projects.