Do you need permission to sell licenses for photos of people?

In general, you may photograph people in public. The use of those photographs can be restricted due to state privacy laws, often called the “right of publicity” or “misappropriation.” While the specifics of these laws vary by state, they prevent the unauthorized use of a person’s likeness for commercial purposes (such as on merchandise or for advertising or trade). The laws do not apply if the image is used editorially, which includes newsworthy items and fine art. See my September 14, 2005, blog entry for a summary of the different privacy rights.

In the recent case of Maloney v. T3 Media, Inc., former student-athletes Patrick Maloney and Tim Judge alleged that T3Media had unlawfully exploited their likenesses commercially by selling licenses for photographs for “non-commercial art” purposes.

On appeal, the U.S. Court of Appeals for the Ninth Circuit noted that the Copyright Act affords copyright owners the “exclusive rights” to display, perform, reproduce, or distribute copies of a copyrighted work, to authorize others to do those things, and to prepare derivative works based upon the copyrighted work. 17 U.S.C. § 106. In other words, the copyright in a photo gives the owner “the right to control the work,” including the power to to make the work available to the public.

Section 301 of the Copyright Act works “to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works,” so long as the rights fall “within the scope of the Federal copyright law.” H.R. Rep. No. 94-1476, at 130 (1976). That is, copyright law (which is federal law) will preempt or override a conflicting state law.

After an extensive two-part analysis, the Court held that the Copyright Act preempted the plaintiff’s state-based right-of-privacy claims “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.” That means that T3 did not violate the athletes’ rights of privacy when selling licenses for photos of the players for editorial use, even if T3 made money from the licenses. The criterion is the end-user’s use of the licensed photos.

On the other hand, the Court noted that a right of publicity claim is not preempted when someone’s name or likeness is used without consent on merchandise or in advertising. That would be a “commercial” use requiring the person’s permission, such as through a model release. Since Maloney and Judge never alleged that their names or likenesses were in connection with the sale of merchandise or in advertising, it wasn’t an issue.

For a more detail analysis of the case, check Rebecca Tushnet’s blog entry.

What does this mean for photographers? Make sure that you have a model release before using a person’s photograph commercially. In this case, though, consent wasn’t needed because the photos were being licensed only for non-commercial/editorial use.

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