Photographers persistently are concerned about whether they need a model release to use the photo of a person (rightly so). It's always best to have a model release, of course, but whether it's legally required is determined by each state's law on the right of publicity.
According to the law in Florida, the right of publicity involves the commercial appropriation of someone's name or likeness. Violations occur when photographs of people are used in advertisements or trade without permission.
Florida statute section 540.08 on "unauthorized publication of name or likeness" provides, in pertinent part:
(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by: (a) such person;
. . .
(3) The provisions of this section shall not apply to:
(a) The publication, printing, display, or use of the name or likeness of any person in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes.
A few years back, a Florida court applied the Florida statute to a situation that may be helpful to understand what it means. In Lane v. MRA Holdings, LLC, 242 F.Supp.2d 1205 (M.D.Fla.2002), the Middle District of Florida considered whether Florida section 540.08 was violated by the defendants' display of the plaintiff exposing her breasts in a "Girls Gone Wild" video. The plaintiff had consented to being videotaped (thus not constituting an invasion of privacy) but was allegedly unaware that the video would be sold to the public.
The court rejected the plaintiff's section 540.08 argument, reasoning as follows:
Under Fla. Stat. Section 540.08, the terms "trade," "commercial," or "advertising purpose" mean using a person's name or likeness to directly promote a product or service.
As a matter of law, this Court finds that Lane's image and likeness were not used to promote a product or service. In coming to this conclusion, this Court relies on section 47 of the Restatement (Third) of Unfair Competition which defines "the purposes of trade" as follows:
The names, likeness, and other indicia of a person's identity are used "for the purposes of trade" . . . if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use "for the purpose of trade" does not ordinarily include the use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising incidental to such uses.
In this case, it is irrefutable that the Girls Gone Wild video is an expressive work created solely for entertainment purposes. Similarly, it is also irrefutable that while Lane's image and likeness were used to sell copies of Girls Gone Wild, her image and likeness were never associated with a product or service unrelated to that work. Indeed, in both the video and its commercial advertisements, Lane is never shown endorsing or promoting a product, but rather, as part of an expressive work in which she voluntarily participated. [Citations omitted.]
. . . [C]ommon usage of the term "commercial" in the commercial misappropriation and right of publicity context is indeed limited to the promotion of a product or service . . . , but . . . such works [also] should be protected by the First Amendment. [Citations omitted.]
In sum, the court found that no model release was needed to include the plaintiff's image in the "Girls Gone Wild" video as long as her image/likeness was not used to promote another product or service. While each circumstance is different, this case does a good job of explaining when a model release is needed in Florida.
Take my advice; get professional help.
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