Photographs Can Be Worth Much More Than a Thousand Words
One of the more complicated areas of the law concerns the use of photographs taken of persons and/or property. Through the use of properly drafted releases, you can shield yourself from liability claims.
Why you need releases
A release is a written agreement between you and the person you are photographing, or the person who owns the property you are photographing. The purpose of the release is to protect you from any future lawsuits the person might file for claims such as defamation and invasion of privacy.
A model release says the person being photographed has given consent to be photographed and to the use of the images you capture. It doesn’t just apply to professional models or situations where people know they are posing for photos. You should seek to get a signed model release any time that your photos contain recognizable images of people, unless you are certain that you will never want to use them for anything other than editorial purposes.
A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release.
The releases you obtain should be saved forever and should be linked in some way with the photographs to which they relate. You can expect to be asked to produce them whenever you license an image, and you will need them if you ever have to defend yourself in court.
The Right of Privacy
Although the laws of the 50 states vary, all states recognize that individuals have a right to be let alone in their daily lives and that harm (in the form of embarrassment, scorn or loss of status) can result if that right is violated.
However, the right of privacy is not absolute. In particular, the courts have long held that news reporting and social, political and economic commentary — the things the First Amendment was designed to protect — are more valuable to society than an individual’s right to be let alone. Therefore, images that are part of the public colloquy about events have usually been exempt from privacy lawsuits. In contrast, the courts have generally held that making money is distinctly less valuable to society than the right to be let alone.
Thus, privacy issues typically arise when an image is used for purposes of trade or advertising. That is, it’s not the picture, but how it is used that determines the need for a release. For instance, an image that is printed in a newspaper, shown in an exhibition or reproduced in a book might well be immune from a privacy suit. But the commercial sale of coffee mugs or t-shirts with the same image would probably not enjoy such protection. An advertisement almost certainly would not be immune.
Therefore, if you are on an advertising assignment, you will need to collect releases from every person in your shots. News assignments are a little trickier. You are always better off if you have permission to photograph your subjects and can prove it. But it’s not always possible to get permission and, in the U.S., you can report the news without it. Lacking a release, however, you are limited in how you can license the image later on.
These days, even editorial clients are requiring releases — and releases using their specific forms — with more and more frequency, so you need to check the terms of your agreements with your clients and stock houses to see what is required.
The Right of Publicity
In an increasing number of states, a famous individual has an additional “right of publicityâ€: the right to control how his fame can be exploited for commercial purposes. Unlike rights of privacy, which die with the persons to whom they belong, rights of publicity survive their owners and can be passed along for generations. Rights of publicity also tend to be more specific in their prohibitions than rights of privacy.
For photographers and their clients, the right of publicity can become a problem when people become celebrities after you have taken their picture. It can especially be a problem with crowd scenes.
How does the right of publicity differ from the right of privacy? The right of publicity protects the business value of your identity. In contrast, the right of privacy protects your right to be left alone. It shields you from the emotional anguish resulting from the public disclosure of private facts or images that are not a legitimate concern of the public.
What’s the benefit of a release? It will not prevent a lawsuit. But it will shield you from liability from publicity claims if the release authorized the use about which plaintiff now complains. A properly drafted release will also protect you from privacy claims.
(Content of this post is copyright Paul S. Vicary and reproduced with permission. This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult an attorney to discuss your particular issues. This article is based on Florida and/or United States law. This article does not create any attorney client relationship and is not a solicitation.)
Paul S. Vicary, Esq. The Vicary Law Firm, P.A. 701 Brickell Avenue Suite 1550 Miami, Florida 33137 Tel: (305) 728-5133 Fax: (305) 397-1741 Email: paul@vicarylaw.com
