© 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.
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.