Publication of Photographs: Is A Release Required?

© Copyright 1999 Lloyd L. Rich, Reprinted with Permission.

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.
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