Jacobson & Associates
Representing personal injury
clients in all types of accidents
Our firm has represented over 8,000 personal injury clients in
all types of accidents and scenarios as well as over 3,500
worker's compensation clients for their work-related accidents

Personal Injury Newsletter

The Right to Privacy and Publicity and Photographs

The right of a photographer to sell or commercially exploit a picture of a stranger depends on numerous factors. Much will depend on whether the subject’s consent was obtained. Further, the subject of the photograph might have a right of privacy and a right of publicity (i.e. a right to control the use and commercial exploitation of photographs). The extent and availability of these rights vary by state.

Right to privacy laws protect an individual from disclosure of private facts. The right to publicity controls the right to commercial use of a photograph. The first protects from disclosure of embarrassing facts, the second from financial loss from unauthorized commercial use. People who lead public lives have restricted rights of privacy, but broader rights of publicity (some states even give such rights to deceased persons).

An individual’s rights of privacy and publicity are limited, however, by the First Amendment of the U.S. Constitution, which ensures freedom of speech. Publication of photographs in connection with news, political, social and economic events is considered protected speech, and not “commercial use.” Some contend that there is no requirement for a release from the subject if the intent behind publishing is to inform or educate. Where a photograph of another is taken and used for the purposes of educating or informing the public, as in a newspaper, the photographer may not need to obtain the consent of individuals pictured in the photograph.

As stated above, privacy and publicity laws vary among states, however, and it is not always easy to determine newsworthiness. Thus, it is also difficult to determine when a release or consent is needed. To be on the safe side, (especially when photographing private individuals) photographers should always seek the consent of the individual photographed.

Precautions For Photographers to Limit Potential Liability

The prudent photographer will consider obtaining a written release from any individual in the photograph who is recognizable. If a travel magazine publishes a photo of the Grand Canyon, with several tourists in the foreground, a release probably need not be obtained from all the tourists. Where individuals are in the photograph incidentally, and are not recognizable, no release is necessary. Photographers should also consider the following items:

  • Obtain parental consent from parents or guardian of minors whose image is used.
  • Even if the photograph is to be used for a “newsworthy” purpose, obtain a release in case the photograph is later used for other purposes.
  • Caption the photograph correctly.
  • When altering or cropping a photograph, avoid placing the individual photographed in a context other than that consented to in the release.
  • Invasion of Privacy: Intrusion Upon Seclusion
    A “tort” may generally be defined as an act deemed wrongful enough that one who suffers injury from it may bring a lawsuit to recover damages. Many torts have their origin in “common law,” which is the body of... Read more.
  • Defects in SUV's and Product Liability
    “Sport Utility Vehicles” (SUV’s) have become increasingly popular. It has been estimated that SUV’s comprise 25% or more of new car sales, as opposed to only 2% in 1985. Unfortunately, serious questions have been... Read more.
  • Personal Injuries Caused by Employee Cellular Phone Usage
    In one decade, cellular telephone use has gone from being a novelty for the fortunate few, to being commonplace in our society. Most Americans have a “cell phone” and many use them while driving. In light of the associated... Read more.
  • An Overview of the Federal Tort Claims Act
    The doctrine of “sovereign immunity” protects the U.S. and other governments from lawsuits. In 1946, Congress adopted the Federal Tort Claims Act (FTCA), which created a limited waiver of that immunity. The... Read more.
Personal Injury News Links
Share This Page:
Designed and Powered by NextClient

© 2015 - 2021 Jacobson & Associates. All rights reserved.
Theme Web Express website design by NextClient.com.