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Food For Digital Thought: When Do You Need a Release

He made it real easy for me...no release required!!!

He made it real easy for me…no release required!!!

I’ve been asked several times by my online students with the PPSOP, my “Stretching Your Frame of Mind” workshops I conduct around the planet, and several of you that had ask me on my blog as to when you need a model release.

The following is an article I had Dana Lejune (http://www.triallawyers.net/, my attorney, write for my blog. Since he’s an expert on the subject, I thought it would be great for you to read it straight from him. I guarantee you that what he says is the Gospel and can be taken to the bank. It might be a little long, but you know how lawyers are!!!

Here’s what he had to say:

“These days, it is commonplace to view photographs in newspapers, websites, and magazines depicting everyday people in a bustling city square, busy airport, or crowded stadium. Most will look at such pictures without a second thought. However, this might make one wonder if all the people in these photos are aware they are forever encapsulated in a stranger’s photograph. More importantly, how would they react if they were to find out? If a photographer isn’t careful, he can be held liable for violations of the laws governing invasion of privacy. This area of the law can be vast, encompassing common law, constitutional law, statutory law, and international law. However, this article will focus on three specific types of privacy incursions, which photographers must consider in their art: (1) Intrusions and harassment in the course of photography in public places; (2) The dissemination of misleading or false information; and (3) the appropriation of name or likeness.

Intrusion upon seclusion: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. A claim for intrusion upon seclusion requires the matter into which there was an intrusion is of the kind that is entitled to be private, and is kept private by the plaintiff. This comes down to what the average person views as a matter of one’s private business. Photographers shooting in a public place will generally be shielded from this cause of action. The courts have determined anything visible in a public place can be recorded by means of a photograph since this amounts to nothing more than giving publicity to what is already public and what anyone would be free to see.

Simply put, there is just no reasonable expectation of privacy in apublic place, which would lead an objective viewer to weigh a plaintiff’s interest in privacy over a photographer’s interest in shooting there. So an individual who spots himself in a magazine advertisement walking to work on a crowded city street, generally should have no cause of action against the photographer.

False Light: A photographer who gives publicly to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if: (a) The false light in which the other was placed would be highly offensive to a reasonable person, and (b) The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. False light invasion of privacy can be, and often is, compared to defamation. However, there’s a few major caveats which differentiates the two. First defamation only requires “publication,” which means that the communication merely requires communication to another person. False light, on the other hand, requires “publicity.” This means that in order to be successful in a false light suit, the plaintiff must show there was a wider communication of the information to the public at large.

Additionally, a key component to false light is the manner in which an individual is depicted, not what is actually stated. That is to say, the photographer doesn’t have to actually make a false and defamatory statement to be liable. A photographer could be liable for false light so long as a reasonable person would insinuate a highly offensive false impression. For example, often certain religious fundamentalist photographers will take pictures of men walking near massage parlors or adult entertainment clubs. These photographers could be liable for false light invasion of privacy, if one of these men subsequently loses his job or gets divorced as a result of the publicity of this image.

Despite the damaging consequences such acts can have on an individual, false light remains the least-recognized and most controversial aspects of invasion of privacy law, and many jurisdictions do not recognize this cause of action at all. While photographers should be aware of false light invasion of privacy; in many jurisdictions, including Texas, a photographer cannot be held liable for merely depicting another in a false light in a photograph.

Appropriation of name or likeness: One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. Unlike intrusion upon seclusion and false light, this cause of action surrounds the commercial nature of the photograph. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial values associated with the name or the likeness that the right of privacy is invaded. Put another way, there must be something unique or special about the individual’s name or likeness that would result in commercial profit from using his image in the photograph in question.

For example, if a photographer captures a picture of George Clooney standing next to a brand new Ferrari and uses it for an advertisement for Ferrari; the photographer could be liable for appropriation of name or likeness. However, a picture of a local pizza delivery boy doing the same—much less likely.

Example: A group of patrons at a dog-racing park were photographed in the stands, and the park printed the picture in an advertising brochure. The patrons were not identified by name and were not considered celebrities or prominent members of society in any form. The court concluded that there was no unique quality or value in the patrons’ likenesses that would result in commercial profit to the park simply from using a photograph that included them, and their action failed. If you use a photograph for a commercial purpose, it’s a good idea to get a release. However, shots of public scenes will likely fall into the ” no reasonable expectation of privacy” category regardless of its use. It just wouldn’t be practical to try and get 10,000 releases for a photo of a section of a football stadium.

Photographers Must Be Aware of Their Surroundings. Generally, a photographer shooting in public would have scant liability to those who incidentally appear in an image. Nevertheless, photographers should do what they can to protect themselves. A prudent photographer should always carry prepared release agreements, and seek permission to publicize an individual’s face in a photograph.”

Btw, Photos used for education or news stories do not generally require releases because there’s no appropriation issue. However, these uses could become susceptible to false light defamation, or claims for commercial appropriation by a celeb or professional model.  

When shooting children, always have a parent sign a minor release.

Visit my website at: www.joebaraban.com, and be sure to check out my upcoming workshops. I have two spots left for my photo trip (in conjunction with Epic Photo Tours) to Myanmar. This top rated company has been taken groups there for a long time and the testimonials have been outstanding. I’ve had several past students tell me that it was one of the best experiences since they’ve been shooting…a first class adventure.

Don’t forget to send me a photo and question to: AskJoeB@gmail.com

JoeB

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    { 5 comments… add one }
    • Valeriano July 22, 2014, 6:03 am

      “For example, often certain religious fundamentalist photographers will take pictures of men walking near massage parlors or adult entertainment clubs. These photographers could be liable for false light invasion of privacy, if one of these men subsequently loses his job or gets divorced as a result of the publicity of this image.”

      Ok this is insane! You must be kidding!

      • Joe July 22, 2014, 8:01 am

        Valeriano,

        I don’t know what it’s like in Italy, but in the US everyone is looking to make some quick money, and one of the best ways is to sue someone. Even if the photographers were on the side of ‘right’, his insurance company (if he was lucky enough to have liability insurance) would probably want to settle out of court for an undisclosed amount. Even if the photographers were to win, it would still cost him a lot of money in attorney’s fees. It’s a no-win situation in the US.

        I carry a million dollar liability policy!!!

        JoeB

        • Valeriano July 22, 2014, 9:17 am

          Joe,
          in Italy a “photographer” doing that (chasing after men going for adult entertainment) is either a con artist trying to blackmail someone, or a private investigator on a call (and some of them will also try to blackmail the guy in order to get a double catch…).

          Certainly this person isn’t doing anything as an artists nor as a reporter.

          I never heard about religious fundamentalist photographers, but it could also be how someone will find a way to justify his blackmailing activity to a bunch of fools. Which is actually something a little worse than a married man or gal (women cheat too…) going for some fun in a brothel or similar; of course I am not stating that cheating a spouse is a noble activity but that’s not a crime as for blackmailing.

          You know, I am talking about those who believe in rituals as the exorcisms and so on. Well if I have to think about a way to make money easy here, I’d certainly go for taking advantage of people with a low education grade using religion to fool them.

          There are a plethora of “collateral” businesses strictly tied to religion stuff here: blood crying Madonna’s statues, flying Madonnas photographed as UFO, miracle men or miracle women, and so on. I don’t know about USA, but I have a glimpse there are similar things there too with certain pastors selling millions of books about purposes and other self help tricks and tips (well at least some of them are actually based on scientific methodologies to help release anxiety and stress by structured procrastination).

          Here in Italy that is something which has increased a lot in the past 15 years; after all it has been something always present: for example until a couple of decades ago we as citizens couldn’t decide about giving part of our annual tax payments but to the Catholic Church (the amount is called “ottopermille”, which means 8‰), despite in our Constitution the freedom of cult (or thereby the freedom of not following any) is a fundamental principle.

          • Joe July 22, 2014, 11:20 am

            People with a low education grade would not be a target for me. They usually (not always) don’t have enough money to make it worthwhile…especially if they earn the minimum wage here.

            JoeB

    • Deb July 22, 2014, 7:32 pm

      Joe,
      2 statements seem at odds with each other:
      “The courts have determined anything visible in a public place can be recorded by means of a photograph since this amounts to nothing more than giving publicity to what is already public and what anyone would be free to see.” and
      “When shooting children, always have a parent sign a minor release.”
      I once shot a picture of a child enjoying herself on a Merry Go Round at Disney. Is photographing a child in a public place somehow a touchy topic?
      Deb

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