Cult of Personality: Celebrity Photography and the "Right of Publicity"
By Kaiser Wahab, Esq.

After the film has been developed, every photographer dealing with live subjects must face legal issues that may not be visible to their trained eye. One of the prickliest issues is the friction between the rights of the photographer and those of the individuals photographed. This battle often hinges on the so called “right of publicity.”

What is the Right of Publicity?

There is always tension between the rights the photographer and the individual’s right to control his or her image. Under copyright law, the unique skills of the photographer in posing the subject, arranging the lighting, and adjusting the camera, etc have long been recognized. As a result, in most situations, self-employed photographers retain the exclusive right to license or sell their photos. However, many states also recognize the right of an individual, whether living or dead, to control the use of his or her image.

This right is often referred to as the "right of publicity" and is derived from the right of privacy. The right of publicity is typically defined as an individual's right to control and profit from the “commercial use” of his/her name, likeness and persona. This body of law is designed to protect the value of an individual’s identity by preventing the unauthorized use or exploitation of that identity for commercial purposes. “Commercial purpose” generally means a use that implies sponsorship, endorsement, or a pitch to sell a product or service.
An individual can bring a lawsuit against the use of an unauthorized photo, claiming that his or her right of publicity has been violated. This can result in monetary damages against the publisher of the photo, and/or forced removal of the photo. As a matter of practice, right of publicity suits are typically brought by celebrities, who are in a better position than the ordinary individual to demonstrate damages caused by a violation of that right. It is simply easier for celebrities to demonstrate his or her identity has commercial value. However, non-celebrities can and do bring suit under the right of publicity.

Currently, there is no federal right of publicity and, as a result, the right varies from state to state. For example, in some states the right of publicity applies only to celebrities or public personalities, while only some states extend the right dead persons. However, either common law or statutory law in almost every state protects certain individuals from the unauthorized exploitation of their identity. While New York does not have an express right of publicity, it does recognize a right of privacy which mirrors the same protections other states call a “right of publicity.” New York state law provides: "Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained [from the person]. . . may maintain an equitable action. . . and may also sue and recover damages for any injuries sustained by reason of such use. . . ." N.Y. Civil Rights Law §51.

Free Speech for Everyone-The Right of Publicity is Not a Legal Gag

Fortunately for photographers, the right of publicity is not absolute. A person's identity may be used in some cases, even if apparently for commercial use. This exception is based on the right of free expression under the First Amendment. Under free speech concerns, courts routinely use a balancing test to weigh the competing interests of the individual versus the societal benefits of news dissemination and open expression. Unfortunately however, there is no definitive rule for how the right of publicity is to be applied and relying on the First Amendment has lead to unpredictable results.

Is it Making a Headline? The "Newsworthiness" Exception and Photography

However, it is clear that the body of cases concerning the right of publicity provide a “newsworthiness” exception that may offer safe haven to a photo publisher. Due to this exception, protection under the right of publicity is evaluated against a hierarchy of possible uses. Depending upon how the individual's identity is being used, the right of publicity is weakest against photos used to depict news events and stronger against uses in entertainment and fiction. Most importantly, the right is strongest when applied to the unauthorized use of a photo in advertising and where a person's identity is used to sell or promote services and products.
Two questions must be asked before a photo is published under the newsworthiness exception. Does the unauthorized photo truly convey “news” that is subject to First Amendment protection? Is there a reasonable connection between the photo of an individual and the news that is being conveyed? Merely tacking on a photo to attract attention to a news or entertainment story, unrelated to the identity of the depicted individual, will not satisfy the newsworthiness exception. Therefore, to use an unauthorized photo in connection with a "news" or "public interest" story, one must demonstrate that a reasonable relationship between the depicted individual’s identity and the subject of the story exists.

As a result, news, political commentary, satire and other communications of public interest often escape the right of publicity. This is why newspapers and magazines often publish photographs and other personal details without permission in the following situations:

A. Photographs of individuals taken in public places to illustrate a newsworthy event;
B. Photographs of individuals used on a book or magazine cover, where the book or a contained magazine article is about the individual;
C. Photographs of individuals used to advertise or promote a book or article that features the individual as the subject; and
D. Photographs of individuals used to promote a publication in which that individual’s ideas are discussed.

To summarize, the newsworthiness exception protects our society’s high premium on the free flow of information and may permit the use or publication of unauthorized photos in the following scenarios:

A. Photos used to depict/illustrate current events, or past news events or convey useful/informative information that is not necessarily a news event;
B. Photos used to present or illustrate matters of public concern;
C. Photos used as part of materials with historical, or educational value; and
D. Photos used to convey information concerning interesting aspects of an individual's identity for entertainment purposes.

Use Common Sense and Do your Research

The right of publicity and its impact on the photographer cannot be overstated. It is a difficult and hotly contended area of law, especially given the rise of digital media and distribution. When confronted with a right of publicity scenario it is always best to get a release from the subject when possible. In the event that a release was not or could not be acquired, seek experienced counsel to minimize your risk of legal liability.

© 2004 Kaiser Wahab, Esq.