Photo Attorney

May 19, 2009

When You Definitely Need A Model Release

American Apparel used a still shot of Woody Allen dressed as a rabbi from the Annie Hall movie (shots of the billboard are shown here). Mr. Allen didn't like it and sued.

In general, when people are in public, you may photograph them. The use of the photographs can be restricted due to certain privacy rights. See my September 14, 2005, blog for a summary of the different privacy rights.

Mr. Allen's claims against American Apparel included violation of his rights under New York Civil Rights Law Sections 50 and 51 and for violations of Section 43(a) of the Lanham Act (15 USC 1125). You may review the specific sections of the NY laws online. Click on "CVR" for Civil Rights, then Article 5 for Right of Privacy.

Section 50 of the NY law states:

Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian [editor's note: a model release], is guilty of a misdemeanor.

Section 51 provides, in pertinent part:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action [editor's note: the court orders the defendant to do or to stop doing something] in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages [editor's note: money] for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.

Other parts of Section 51 are important for NY photographers to review but are not applicable to the Allen case:

[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; [and]

[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation . . . from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith.

The Lanham Act is federal law and applies throughout the United States. Section 43(a) provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Privacy rights are recognized in most states, but the specific laws are different for each one. The National Conference of State Legislators and The Reporters Committee for Freedom of the Press provide an overview of them. Check with your attorney for more information.

The Allen lawsuit reportedly has settled for $5 million. What to learn from this case? Get a model release to protect yourself and to make your photos more attractive to potential buyers.