Legalities 8: More on Using Real People in Your Work

Q. I’m a travel photographer. I’ve taken lots of photographs of people around the world, which I’m now putting together in a book. I did not get oral or written permission from these people, and in most cases I could not speak their language. Am I at risk if I publish these images?

Q. As a journalist photographer, I’ve taken many photographs of public events in San Francisco, including the Pride parade. Several photos show people in various stages of undress. Most of these people were aware that I was taking photos, and some even posed for me. However, I did not get any written releases. Can I show these photos in an art gallery, and publish them as a book?

Q. I take figure painting classes with models hired by the school. I’m assuming that because these are professional models being paid specifically to model for these classes, I can do anything I want with my paintings of them. Is that right?

A. When your work portrays a real person, the legal question is whether her rights of privacy or publicity are violated. As discussed more fully in last month’s column (Legalities 7), these rights may be violated when:

(1)   the person is clearly recognizable in your work, and
(2)   you don’t have the person’s permission;
and
(3)   your work shows something embarrassing, private, or negative and untrue about the person; or
(4)   your work is used on commercial merchandise or advertising.

(1) Is the person clearly recognizable in your work?

Usually, to be recognizable means that a person’s face is clearly visible. However, if your photo shows something unique about another aspect of the person, that may make her recognizable in your work. An example could be a particular tattoo in a particular place on her body, or a particular costume that she is associated with. For paintings, the question may be whether your likeness is accurate enough that viewers will recognize her. If the person is not recognizable in your work, you are safe: your work can’t be a violation of her legal rights.

(2) Do you have the person’s permission?

When you take a person’s photograph surreptitiously, obviously you don’t have her permission. When she specifically poses for you, you clearly have her implied permission to take the picture. Similarly, when she is aware that you are pointing your camera at her and does not object, you can probably assume you have implied permission.

However, that’s not the end of the inquiry. The real question is: even if you have implied permission, do you have permission to use her image in all of the ways that you want to? The answer depends on the nature of the image, and how you want to use it.

(3) Does your work show something negative or embarrassing about the person?

Your photograph or painting may invade the person’s privacy if you trespassed on private property to get the person’s image, if your work discloses private facts about the person that are not of legitimate concern to the public, or if your work suggests something false and derogatory about the person. See Legalities 7 for a fuller discussion of these standards. In the examples above, the travel photographer may have crossed the line if he entered private property to take the photograph, or if he photographed a private religious ceremony. The painter may have portrayed the model doing something offensive, for example, engaged in a sexual activity. The model’s implied permission would not extend to such objectionable contexts.

In contrast, the journalist photographer is probably on safer ground here. Her subjects chose to appear in a public parade dressed (or undressed) the way they look in her photos. So even though her photographs show them partially nude, they can’t argue that she is disclosing something private or embarrassing about them. Moreover, how they dressed for a public event is necessarily “of legitimate concern to the public.” That exempts the photographs from claims of invasion of privacy. However, remember that a negative or false implication can also be created by text used in connection with an image, or the placement of one image near another. Both photographers should be careful about the captions printed with their photos, and how they are juxtaposed with other photos.

(4) Is your work a commercial exploitation of the person’s image?

Even if your work does not show something negative or embarrassing about the person, there is still one more hurdle: are you using the image in a way that qualifies as free speech, or in a way that qualifies as commercial exploitation? If your use of the work qualifies as free speech, it is immune from liability for violation of privacy or publicity rights, even if you don’t have the subject’s permission. If it is commercial exploitation, you need the person’s permission, and implied permission may not be sufficient.

Traditionally, the first amendment right of free speech protects any images that are used for newsworthy or editorial purposes. Generally, display and sales of original artwork qualify as free speech under this standard. Thus, the painter’s original oil painting will be safe, and so would the original photographs displayed in a gallery.

With respect to the photographer’s books, the question is more complicated. Books are traditionally considered educational, editorial or newsworthy, and thus protected as free speech. This has been true even though books are products that are sold for a profit. In our examples, both travel books and books on the Pride parade are obviously educational, editorial and newsworthy.

However, the law has gotten more complicated than this. It could be argued that a cover photograph of a single recognizable person is being used in a commercial way to sell the book, especially if the photo is also used in advertisements for the book. Thus, the cover photo could cross the line from protected editorial use to a commercial exploitation. For the painting, it might be reproduced on commercial goods such as t-shirts, postcards, or greeting cards. Or the artist might license the image for use in an advertisement. In each case, the book cover and the reproductions of the painting could violate the depicted person’s rights of privacy and publicity, unless you have specific permission for those uses.

When a person allows you to take her picture, most likely she is assuming you are taking the photo for personal use, or at most for journalistic/editorial purposes. Thus, her implied consent would not extend to your commercial use of the photo to sell your books. Similarly, the model agency’s agreement, or the model’s implied consent, may be limited to creating and selling original artwork. Her permission may not extend to commercial uses of her image on greeting cards or in advertisements.

In our examples, it is not possible for the travel photographer to go back and get specific permission to use someone’s photo on the cover of his book. Of course, as a practical matter, it seems unlikely that his subjects would be in a position to file a complaint against him for violation of their rights of privacy. Technically, however, they would have the right to do so under U.S. law, since his book will be marketed here. So, to be absolutely safe, he would be wise to use as a cover photo an image that does not depict a clearly recognizable person, or that depicts more than one person (the addition of each additional person weakens the argument that any one person’s image is being used to sell the book). The same applies to the journalist photographer’s book on the Pride parade. She may want to be even more cautious, as her subjects live here and thus are more likely as a practical matter to raise a claim.

As for the painter, she should ask the school for a copy of its agreement with the model agency. If the agreement includes a general release (e.g., allowing use of the models’ likeness “for advertising, trade, and any other uses in any media”), she can reproduce or license her paintings safely. If not, or if there is no agreement in place, she would be wise to contact the model and get an appropriate written release.

Conclusion: Get a model release whenever you can.

As this discussion illustrates, the legal issues of rights of privacy and publicity can be complicated. The safest policy is to get a written model release from anyone who will be recognizable in your photographs or artwork (by face or other unique features). For most graphic artists, you need to cover use of your work for commercial products or advertising. Even if you are only showing and selling original work, there could be rights of privacy problems if the person believes your work depicts her in a negative way.

Your model release should be broad enough to cover all of the ways you might use her image, and all of the ways you might use your photos or artwork. It should recite that consideration has been exchanged (“consideration” is the legal term for something of value that is exchanged between two parties to a contract. Consideration can be monetary or anything of value that is offered in exchange for the permission. For example, it could simply be your implied promise to consider publishing the photo). The release should be irrevocable, and also should be clear that the model has no right to review or approve your final images.
Typical language is “For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I hereby grant to [Artist name], her assigns, heirs, licensees, and legal representatives the irrevocable right to use my name, picture, portrait, or photograph in all media and in all manners, including composite or distorted representations, for advertising, trade, or any other purposes, and I waive any right to review or approve the finished versions thereof, including any written copy that may be created in connection therewith.” The release should also state that the person is of full age (over 18), or if the person is a minor, have the parent or guardian sign on the minor’s behalf.

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You are invited to send in questions for consideration in upcoming Legalities columns. Please send your questions to legalities@owe.com.

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Legalities is a service mark of Linda Joy Kattwinkel. (c) 2004 Linda Joy Kattwinkel. All Rights Reserved. Ms. Kattwinkel is a former graphic artist who currently enjoys personal oil painting. She practices intellectual property law, arts law, arbitration and mediation as a member of Owen, Wickersham and Erickson in San Francisco. The information in this column is provided to help you become familiar with legal issues that may affect graphic artists. Legal advice must be tailored to the specific circumstances of each case, and nothing provided here should be used as a substitute for advice of legal counsel. A good resource for finding counsel is the lawyer referral service of California Lawyers for the Arts (SF office: 415-775-7200). Linda Joy Kattwinkel can be reached at 415-882-3200 or ljk@owe.com.

See the index of previous columns for more answers to your questions.