Photo Attorney

Aug 11, 2007

Does Display of Photos for License or Sale Require A Model Release?

Many photographers and stock agencies display photos of people that are available for licensing or print sales. While the end user clearly has the responsibility to have permission, as evidenced through a model release, of a person in the photo to use it in a commercial manner, the photographer or stock agency has never been liable for failure to have that permission. Unfortunately, that may change.

The singer, James Brown (now deceased but his estate is continuing the action) filed suit against Corbis in Illinois claiming that Corbis has violated his right of publicity for "commercial use of his image on the Internet" by selling/licensing photos of him. Corbis advises licensees that it does not have a model release from Mr. Brown, so the users would need either to obtain one or use the photo editorially.

Rights of publicity are state-based rights. While similar, they differ slightly in each state. Illinois' statute defines commercial use of a person's name or likeness to be:

Commercial purpose means the public use or holding out of an individual's identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services . . . .
765 ILCS 1075/5 (West 2002).

To summarize the case thus far: Corbis filed a motion to dismiss claiming that Mr. Brown had no valid claims as a matter of law. The trial court ultimately denied Corbis' motion so Corbis filed an interlocutory appeal (asking the state appellate court to review the decision before the case went further). The appellate court held:
In light of the vast difference of opinion regarding the interpretation of the definition of what Corbis sells and the legal effect of such sales, we cannot say that the facts are undisputed that Corbis's display of the photos of James Brown on its Web site did not in some way constitute an improper commercial use under either the Illinois common law or the Publicity Act. We therefore cannot conclude that the trial court erred in denying Corbis's motion to dismiss.
Emphasis added. (Read the full opinion here).

The affirmation of the trial court's denial of the motion to dismiss does not mean Corbis has lost. It will have to fight this battle at the trial court. If it loses there, Corbis likely will appeal the judgment all the way to the U.S. Supreme Court since First Amendment rights are at risk. While the final result won't be known for a while, the possibility that photographers and stock agencies will need a model release to display their photos to be licensed or to sell prints is a major concern.

Take my advice; get professional help.

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