Black Star Rising received the following question from a photographer identifying himself as Baron V. —
I recently received a nasty e-mail from a model I shot about seven years ago. We had a verbal agreement to do the shoot, with the understanding that I would use the photos for various purposes, including as art for a magazine article about me and in my online portfolio.
No fees were charged for portraiture, nor was the model paid any fees. It was a classic swap — photographer’s time and materials, model gets access to prints for personal use. At the time, the model even requested a copy of the magazine article and posed for me for other projects.
The e-mail in question demanded that I take all photos of the model in my online portfolio down immediately. The model threatened to pursue other avenues if I did not comply.
I obliged her request, but since then have been having second thoughts. If I knew I were on firm legal grounds, I would like to keep her images in my portfolio.
What should I do?
The violation of the right of publicity (also known as “misappropriation,” one of the rights of privacy) is, in simple terms, the unauthorized appropriation of someone’s name or likeness.
In some states, the claim can include the unlawful use of a person’s voice, signature, image, distinctive appearance, gestures and/or mannerisms. 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.
A Personal Injury Tort
The violation of a person’s right of publicity is a personal injury tort. Since the right of publicity is a state right, rather than being based on federal law, the particulars of the right vary by state. In 19 states, the right of publicity is established by the state’s legislature by statute; you can view the statutes here.
In 28 other states, the right is established under common law, created by the state’s courts. The remaining states do not currently recognize this right.
The applicable state law is usually where the photo was published and/or the person injured. 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.
The U.S. Supreme Court has addressed the right of publicity only in one case: Zacchini v. Scripps-Howard Broadcasting Co. 433 U.S. 562 (1977). There, the Court held that a television station violated a performer’s right of publicity by showing the performer’s 15-second human cannonball act in its entirety on its news broadcast, effectively robbing the performer of his economic interest in his act.
Of course, the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances”) allows for some uses of a person’s name or likeness, such as for newsworthy purposes.
Such “editorial uses” do not need the model’s consent. But since most uses are not clearly editorial, it’s always safest to get a release.
Written vs. Oral
Some states specifically require that the consent for the use of a person’s likeness (a model release) be in writing. But an e-mail exchange can comprise the writing; it’s a judgment call that depends on the circumstances.
For the states that don’t require written consent, it boils down to whether you can prove that the oral consent was given. Were there witnesses to the agreement? Do you have any other proof that you had a deal with the model?
Ultimately, the most important question for you may be whether your continued use of photos of this model is worth the fight.