One question that I have long felt to be open is whether or not a news photographer, whose business is taking pictures of people, could be liable for misappropriation of likeness for using someone’s image without consent on a website designed primarily to sell that photographer’s services, or the images themselves.
First, let me explain a little bit about “misappropriation of likeness,” also referred to as the “right of publicity.” This is one of the privacy torts. Basically, every person has the right to control the commercial use of their “likeness,” that is, the picture of themselves – that is why Michael Jordan was paid to endorse Nike. Commercial use can mean use in trade, or use in a way that proposes a transaction. A photographer’s website, when it exists solely to promote that photographer’s professional services and licensing, is a website promoting a product and service.
There is a First Amendment exception to the right against misappropriation, so of course, the subjects of your photographs have no right to control your use of those images in a First Amendment use, such as in a newspaper, book, documentary movie, or news website.
This photo of well-known author Sandra Cisneros can be used without her permission for an article about her or her books. However, it couldn’t be used without permission for an advertisement to sell shawls, her signature accessory. (Photo by Alicia Wagner Calzada)
But that all changes when the same photo is used for commercial purposes, to sell a product or service. If I were using a photo of Shirley Jones to market my business selling psychedelic school buses, I would need her consent. Knowing this, the question arises, if I use a photo of Shirley Jones walking the red carpet, to market my photos of Shirley Jones, do I need her consent?
A court in California said no, at least not in the circumstances of one case, and last week an appeals court agreed. Jones sued Corbis for violating her right of publicity because they displayed her name and image without her consent on their website as sample images of what could be licensed. The display of the images of Jones was for the purpose of selling a product (the product is a license for the photo of Shirley Jones). All of the photos in question were taken at a red carpet event.
In California, a person can consent to the use of their name or likeness in writing, but the consent can also be implied. The trial court ruled that Jones consented to the taking of the photos, knew that such photos were widely distributed, and in fact, in “at least one of the events at which the pictures were taken, a notice was posted at the entrance of the red carpet. The notice stated that by entering the premises, [Jones] consented to being photographed, and her name, voice and likeness being exploited by any and all means in connection with the event without limitation.” Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1114 (C.D. Cal. 2011) aff’d, 11-56082, 2012 WL 2884790 (9th Cir. July 16, 2012).
The court held that “It is undisputed that [Jones] voluntarily posed for photographers, who she knew would display her images to prospective buyers, for over 40 years without objection. It was well understood in the entertainment industry that potential customers would not purchase images they could not see before the purchase.” Id.
Furthermore, Shirley Jones “knew and understood that photographers on the red carpet could employ third parties to assist them in distributing her photos.” Id.
Of course, this does not mean that Jones’ publicity rights do not exist in regards to the advertising and marketing of other products. The court specifically noted that it’s ruling was limited to holding that the singer/actress consented to the display of her likeness “for the purpose of distributing the images themselves.”
What does this mean for photographers who want to use images of people on their websites? Well, it doesn’t answer all questions, but when a celebrity or other person consents to their photo being taken, they might also be consenting to the use of their image for the purposes of selling the license to that photo. To me this means, if the photos on your website are available to be licensed, and the person in the photo consented to the taking of the photo, you are that much closer to winning on this issue. For this reason, it might be useful to clarify that all of the images on your website are available to be licensed.
Importantly this case involved an interpretation of California law, and did not address the issue of photos taken without the consent of the subject, or photos that promote a photography business but aren’t available for license. But it is still useful information when making decisions on using photographs.