Black Star Rising received the following question from a reader, Nick Arnold of MinistryAllies.com :
Am I at legal risk in the U.S. if I use a photo with a Creative Commons license where a recognizable face is in the photo and the photographer did not acquire a model release? This would not be for commercial use, just the cover of a free ebook.
Nick, it doesn’t matter how you get permission to use a photograph — whether from a Creative Commons license, a license from a stock agency, or if you shoot the photo yourself. In each instance, you must be concerned about an individual’s rights when you use or publish a photograph of that person. The rights you must honor when using or publishing a photograph of a person are known as the “rights of privacy.”
Four Kinds of Privacy Rights
Privacy rights can be subdivided into four areas. The first is “invasion of privacy” or “intrusion upon another’s seclusion.” This happens when someone actually enters a person’s private domain in a manner that would be considered offensive to the average person.
As a photographer, the act of going on someone’s land without permission would be trespassing and may violate their right of privacy. It is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in a public place.
The second right of privacy is violated when private facts are publicly disclosed. This law is difficult to enforce; if the disclosed information is true, courts usually find that First Amendment (freedom of speech and the press) interests outweigh privacy rights. Violation of these privacy rights occur when an ordinary person would consider the information private and the disclosure offensive. Because of the required elements, photographers rarely run into trouble here.
The third right of privacy requires that you not portray a person in false light. This right can be violated when photographs are published, usually because of the caption. For a violation to occur, it requires that someone be publicly portrayed in a false manner that an ordinary person would find offensive.
To be liable, the publisher of the photograph must have known of or recklessly disregarded the probable falsity of what is represented. A violation here is similar to defamation when someone’s reputation is damaged by a statement that is known or should be known to be false. False light does not require that the person was damaged.
The Right of Publicity
The fourth right of privacy is an important concern for photographers and would be the right at issue in your question. It involves the commercial appropriation of someone’s name or likeness. This is also known as the right of publicity.
Violations of the right of publicity occur when someone uses the names or likenesses of others without their consent to gain some benefit. They usually occur when photographs of people are used in advertisements, endorsements, or trade (when the photos are incorporated into a product, such as on coffee mugs) without their permission.
This is why model releases are so important. They document that you have people’s permission to use their likenesses for specific purposes.
That said, when you use a person’s likeness editorially, rather than commercially, a model release is typically not required. This is because, in the case of the editorial use of photographs, a person’s rights are evaluated in light of constitutional interests.
So, what is the definition of an editorial use? Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.
Better Safe Than Sorry
Specifically, the use of a photo of a person on the cover of a book generally has been deemed to be an editorial use. So in the instance of your free e-book, Nick, this may be the case also.
But that doesn’t mean you can use the photo without risk. Even when a photo is used editorially, the person in the photo can get upset. And the line between a commercial use and an editorial use can be a tricky one; you probably don’t want to leave it to a judge to decide. Moreover, the laws surrounding privacy vary from state to state.
The bottom line, Nick, is that your safest choice is to find an image without a recognizable face for your e-book cover — or to find an image that includes a model release.