Q: For an artist’s book of photographs, you don’t need model releases, because it is “art” even though the images make up the content of the book. I’ve recently been contacted about providing images for an iPhone slide show app, and I’m wondering if I need to obtain model releases for that purpose? The two presentation systems are similar in that they are both vehicles for images (book/slide show), so what differentiates the release requirements between art and otherwise? It’s one area of release requirements that has always been fuzzy for me, and the addition of new media makes things even more confusing.
—TOD SEELIE, VIA E-MAIL
A: There’s a good reason you’re fuzzy about the need for releases with photographs that are used in an aesthetic manner. As a photographer, your rights regarding reproduction and use of your photographs are controlled by a federal statute, the Copyright Act. As a federal law, all federal courts in the 50 states must apply the same statute, although individual federal courts might interpret aspects of the law differently. The right of an individual to prevent commercial appropriation of his or her likeness as depicted in the photograph you have taken is governed by state law. This right is sometimes referred to as the right of publicity or right of privacy. Claims involving violation of personality rights are heard mostly in state court. Some states rely on “common law” or prior cases for guidance, and some states have statutes that describe what rights are covered. The laws of all states and court decisions must respect the United States Constitution, including the First Amendment, which guarantees an individual the freedom of press and freedom of expression. Photography, when illustrating truthful articles, documentaries or books or when displayed as art, is part of one’s freedom of expression. That is why you can sell art prints depicting a person without a release, the media can publish images of public interest, and you can publish a book of your work that contains images of recognizable persons without a release. On the other hand, if you were to make a commercial use of a photograph depicting a recognizable person—for example, permit the use of the photograph in an advertisement, or sell mass-produced merchandise such as T-shirts—most state laws will find that the individual’s right not to have his or her image exploited for a commercial purpose outweighs your right of freedom of expression under the First Amendment, and thus a release is required. The fact that you sell the book of your work or the art prints and may make a profit does not make those uses commercial. If the use is protected by the First Amendment, you can sell and promote the product. There is no consistency in how the courts in the various states apply the law. For example, courts in California lean toward protecting celebrities and therefore enforce the right of publicity, even against artists, while courts in New York favor the media and artists and broadly interpret the permissive uses that are protected by the First Amendment.
The problem with a slide show of images sold as an iPhone or iPad app is that most states with a written statute governing the right of publicity describe the permissible “expressive” uses in old-media language. The statutes that prohibit the commercial use of images exempt images used in works such as a play, a book, a magazine, a newspaper, a musical composition, a film, radio or television. The California statute exempts “single and original works of fine art.” As you can see, these statutes were not written for the digital age, where works are reproduced in multiple copies and transmitted in a digital form. When you sell an application in the iStore, the app can be downloaded by someone in any state. While a slide show may feel just like an exhibition of artwork, there are no cases that have had a chance to determine if the use is “expressive and protected” or commercial and requires a release. Ultimately, it may depend on the purpose of the slide show. For example, if the app is sold as an artist’s fine art portfolio or as the most important news pictures of the year, it may be permissible to use nonreleased images. Yet, if the slide show featured one celebrity, the use might violate state law because the purchaser of the app might be interested in the slide show only because of the purchaser’s interest in the celebrity and not in the aesthetic quality of the photographer’s work. Until state law is drafted with digital media in mind, and courts have had a chance to interpret the law that is already written, if you are interested in licensing images for a slide show, there is less risk of a claim under some state’s publicity laws if you have a release for the images.
Nancy Wolff specializes in intellectual property law and new media law and has been an adjunct professor at the Benjamin N. Cardozo School of Law, teaching mass media and entertainment law.
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