By Helen Sedwick (@HelenSedwick)
Suppose you find the perfect image for your book cover on the internet—a dark-eyed woman who evokes mystery and romance. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!
But wait. Do you have a release from the dark-eyed woman? Do you need one?
Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later you capture that same author sloppy-faced and drunk at a large party. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?
Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake. But you don’t want to walk around with blank releases in your pockets. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?
Using Images with Identifiable People
The rules about using images with recognizable people come down to two considerations:
- whether the person in the photo had a reasonable expectation of privacy, and
- how the image is being used.
Before you use the photo, ask yourself the following questions:
Was the photo taken at a public setting?
Generally, if you take a photo of someone in a public setting, you do not need permission to post or publish the photo, even if the image is unflattering or embarrassing. People do not have a reasonable expectation of privacy for anything they do in public, so click away. You may also assume anyone who poses (or photo-bombs) for the camera in a public place has consented to you taking and using his or her image.
The same question applies to the dark-eyed woman in the Creative Commons image. Was the photo taken in a public place? Could she have had a reasonable expectation of privacy? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.
Regarding the famous author, you may post the images of the famous author sober at the podium and drunk at the party. The punch in the restroom is less certain. You need to ask yourself whether the author had a reasonable expectation of privacy. Was it a public restroom at a convention center or in a private bathroom at the host’s home? Was the author too drunk to understand his actions were in plain view? There is no right answer here; only factors to consider, including non-legal factors, such as your reputation in the writing community.
The exception to the general rule about public venues applies to performances or meetings where you are informed taking photographs is prohibited. In those situations you make an implied promise to honor the no-photo request as a condition to viewing the performance.
And you cannot use the images for commercial or promotional purposes without permission, even if they are taken in public settings, are available under a Creative Commons license, or are in the public domain. That includes book covers. More on that below.
Was the photo taken in a private setting?
If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any photo showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.
There is an exception if the image is newsworthy or addresses a matter of public interest (something decided by a court). In those cases, you may be able to post and publish the photo. Courts balance First Amendment issues against the rights of privacy. However, I would not do so without going over the specifics with an experienced attorney.
Obviously, don’t climb fences, peer through windows, hack computers or phones, or stalk people to get their photos. Courts are particularly punitive about intrusive measures, particularly involving private individuals.
And never venture into Revenge Porn; a jilted lover posting nude images of his (yes, it’s almost always his) former partner without permission. In some states and countries, Revenge Porn is a crime.
Is your use commercial?
Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.
The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?
To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.
As for the dark-eyed woman? Contact the original photographer and ask whether a release was obtained or is possible. If you use her on your book cover without a release, it could cost you plenty.
Will your use imply any advocacy or endorsement?
Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.
Does your use of the image create a false impression? Consider the context in which you are using the image. If you are writing a post about violent street gangs on a particular street and use an image of a young man walking down that street, you could be implying the young man is part of a gang. Even if you do not say the young man is a gang member, you could be defaming him by portraying him in a “false light.”
Similarly, don’t insert yourself into photos. Recently, an attorney had her license suspended for pasting herself into dozens of celebrity photos as part of promoting her entertainment law practice. What was she thinking?
How high is the M.E. factor?
As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.
What about stock images?
If you license an image from one of the large stock image companies such as IStockPhoto.com, Dreamstime.com, or Getty Images, then they generally guarantee they have obtained all necessary releases, but only if you are paying for a “royalty-free” license. An “editorial license” is more limited and does not permit commercial use.
Bottom line: Photographs taken in public settings are almost always fair game. You may post and publish them for any purposes other than commercial or promotional or in any way that implies a connection or endorsement. For all other uses, getting permission is recommended. Here’s a sample Release you are free to use.
I hereby release and grant to ______________________ (your name) (Photographer), and his or her assigns, licensees, and legal representatives, the irrevocable right to use any photographs of me taken by the Photographer, in all forms and media, whether now existing or not yet created, and in all manners, including composite or distorted representations, for advertising, trade, promotional, political, charitable, education, or any other lawful purposes. I hereby waive any right to inspect or approve the finished versions, including written copy that may be created in connection therewith. I have read this RELEASE AND CONSENT and am fully familiar with its contents.
Contact information ___________________________________
Date ___________, 20____
(If applicable) I am the parent or guardian of the minor named above and have the legal authority to execute the above release. I approve the foregoing and waive any rights in the premises.
Contact information ___________________________________
Date ___________, 20____
About the Author
Writer and lawyer Helen Sedwick has thirty years of experience representing businesses and entrepreneurs as diverse as wineries, graphic designers, green toy makers, software engineers, investors, restaurateurs, and writers. Her newest release Self-Publisher’s Legal Handbook: The Step-by-Step Guide to the Legal Issues of Self-Publishing is assisting indie author in navigating the legal minefield of self-publishing and blogging. Her historical novel Coyote Winds earned five-star reviews from ForeWord Reviews and Compulsion Reads and is an IndieBRAG Medallion Honoree. For more information about protecting your rights and your wallet, email her at Helen@helensedwick.com or visit http://helensedwick.com/.
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.