Photo Attorney

Jul 6, 2009

Q&A - Statute of Limitations for Use of Photos of Persons?

Q. Is there a statute of limitations for the use of a picture of a person in a public space with no model release? Can you use the image after a period of time?

A. Statutes of limitation, in general, are laws that prescribe the time limits during which someone can file a lawsuit. The deadlines vary with the type of claim and applicable law. The purpose of them is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain amount of time has passed.

Because copyrights are governed by federal law, there is only one statute of limitations for copyright claims. Copyright infringement claims are rights of the copyright owner of the photograph and have a three-year statute of limitations from the date of the infringement. See 17 USC 507(b). Some courts start counting the three years when you had a reasonable chance to discover the infringement.

However, the right of publicity or misappropriation, one of the rights of privacy, is different. It involves the commercial appropriation of someone's name or likeness. The claim belongs to the person in the photo. Violations occur when someone uses the name or likeness of another without the person's consent, usually for advertisements, endorsements or trade. That is why model releases are so important; they document that you have people's permission to use their likeness.

The violation of a person's right of publicity is a personal injury tort and begins when the photo is first used in a commercial manner (although many states start counting the time when the person could have reasonably discovered the use of the photo). Since this is a state right, rather than based on federal law, the statute of limitations varies by state law. The applicable state law is usually where the photo was published and/or the person is injured. For most states, the statute of limitations for this type of personal injury is two years, but can range from one to six years. Further, some states only recognize the right for celebrities or public persons. In those states, however, the violation may be an intrusion into the person's seclusion.

But in most states, a person's right of privacy/publicity dies with the person. In the few states where the right survives, the person must have used his or her celebrity during her life or the person's name or likeness had commercial value at the time of death (such as in California). Other states allow this right only to certain persons (such as those who died within fifty (50) years prior to January 1, 1986 in Oklahoma). For more information, check Attorney Andrew Berger's article on editorialphoto.com.

Of course, First Amendment uses of a person's name or likeness, such as for newsworthy purposes, is an editorial use and does not need a model release. Since there are uses that are not clearly editorial, it's always safest to get a release!

Thanks to Rich Collins for submitting this topic.