Tuesday, January 5, 2010
If you want to feel properly protected and have the latitude to maximize your ability to sell an image, don’t forget the model releases when you hit the street
To further complicate matters, the MTA’s policies are neither clear nor consistently enforced. Another MTA representative advised that while “photography on [MTA] property is...strictly forbidden...[a]nyone is free to photograph our bridges from off-property.”
If these various restrictions illustrate one key point, it’s the need to research a locality’s rules before shooting. However, the various random restrictions that may prohibit photography in public are insignificant when compared with the “right of publicity” and impact it can have on your photographs, even those taken in public.
Development Of The Right Of Publicity
The “right of publicity” is the name of the legal theory that, where recognized, permits a person to prevent the use of their name, image or likeness for commercial gain. The right of publicity was at the heart of a class-action suit filed by various former National Football League (NFL) players, including Hall of Famer Elvin Bethea, in Minnesota Federal Court in late 2009. The class-action suit included allegations that the NFL violated former players’ rights of publicity by continuing to make use of the players’ “names, images, and likenesses, to promote the NFL and otherwise obtain revenue” after the players had retired from the league.
The “right of publicity” is an outgrowth of the legal theory that permits people to prevent (and recover damages for) what’s essentially an invasion of privacy. In some instances, the theory was referred to as a “right of privacy in one’s own personality.” Since its early references in court decisions beginning in 1953, more than half of the states in the U.S. now recognize either a statutory or common law right of publicity. Indeed, the former players’ lawsuit against the NFL asserts claims of violation of the right of publicity under the laws of California, Minnesota, Texas, Arizona and goes on to identify 23 other states that recognize either a common law or statutory right, or both.
There’s a certain irony in the former football players’ suit, since one of the earliest cases to squarely address the right of publicity involved a dispute between competing chewing gum companies, with each claiming to have acquired rights to use a professional athlete’s photograph in connection with the sale of gum.
In general, a right of publicity claim only requires a showing that a person used another’s name, image or likeness to his or her commercial advantage without consent. Where some states vary is in the nature of proof required to show that the name, image or likeness was used for a commercial purpose. Some states, like Florida, take the approach that mere publication or display of a person’s “name, portrait, photograph, or other likeness” without consent constitutes a violation of the statutory right of publicity. Some states have even extended the right of publicity to use of a voice, imitations/lookalikes and even abstractions that evoke the memory of a personality.
The right of publicity can be a significant concern for photographers who create images of public scenes. Fortunately, there are some limitations to the right of publicity. Some courts have suggested that the right of publicity must be balanced against “the public interest in dissemination of news and information consistent with the democratic processes under the constitutional guarantees of freedom of speech and the press.” Some states even have gone so far as to include these exceptions or limitations in their statutory law. Florida, for example, includes a carve out, so that the right of publicity won’t apply to publication “in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes.” Florida also excludes “[a]ny photograph of a person solely as a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photograph.”
Unfortunately, even if the photograph is used for editorial purposes—e.g., publication in a newspaper or magazine in connection with a news report—the use may still constitute a violation of the right of publicity. In 1980, Clarence Arrington sued The New York Times, Contact Press Images (CPI) and the photographer for violation of his right to publicity. Arrington was photographed, without his knowledge or consent, while walking along a street in New York City. The New York Times Magazine later used the photograph, without naming Arrington, as the most prominent illustration of a feature article entitled “The Black Middle Class: Making It.” In what was viewed as a victory for media outlets, the court dismissed the action against The New York Times, ruling that the use of the photograph didn’t constitute commercial use and that the subject related to a subject of “public interest.”
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