Photo Attorney

Jul 15, 2007

Uh, I thought YOU got the release . . .

Photographers often take photos of people. If a photo is used editorially, then no model release is needed. If used commercially, then permission is needed to use the person's right of publicity.

A Flickr group is reporting that a photo posted on Flickr was used for an ad campaign by Virgin Mobile in Australia. The photograph allegedly was posted under a Creative Commons license that may not have allowed commercial uses so Virgin may be liable for copyright infringement. The model and her brother are claiming that the model never gave permission to use the photo for the campaign so Virgin may be liable for violating her right of publicity.

In the U.S., rights of publicity are determined by state laws, so they vary slightly among the states. The specific facts of the case will determine whether jurisdiction for a lawsuit for violating the model's right of publicity (also called "misappropriation") is in the model's state, Australia, or elsewhere.

There is some question as to whether the photographer would be liable for not having a model release. No, not unless the photographer misrepresents having a release, agrees to indemnify the user for claims, or causes the photo to be used commercially. Seems here that the photographer is off the hook, but Virgin may not be.

Thanks to Adam Nollmeyer for submitting this topic.

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