In this Asked & Answered video, I answer questions about Model Release.
In this installment of Asked and Answered, I'll explain the rules for taking and using photographs or footage of people in your blog, videos, and other media. And stick around 'till the end 'cause I've got a special bonus for you…
My friend Janice is an artist, blogger, and entrepreneur. She wrote to ask…
I have a question about taking photos of a stranger…or I suppose even not a stranger…. And then posting it to your blog. There is some sort of constitutional right mixed with art mixed with freedom of expression mixed with a violation of privacy. I'd love to know where the line is drawn.
This is a question that comes up quite a bit. The truth is, it doesn't really matter whether the person you're shooting is a friend, a stranger, or whatever… what matters are two things:
First… Where and under what circumstances the photography is taking place, and
Second… how you're using the image or footage.
OK.. Before I go further, I just need to mention that I'm talking about US Law here… Janice is in Canada, where things might be slightly different. If you're outside the US, check with a local lawyer… You shouldn't rely too heavily on the information you find here… OK… So US law…
You see, people have different expectations about their privacy when they're in their homes, offices, workplaces, or other places where privacy is a component of things… Than they do when they're out in public. This is why the paparazzi aren't supposed to be creeping around in celebrities' backyards, on the studio lots, etc., but they operate pretty freely when out in public spaces like on streets, parks, the beach, and so forth.
The same is true for someone who's not a celebrity. If they're in a public place… they're fair game to be photographed, filmed, taped, or whatever. But if the image capture is happening someplace where the person might have a reasonable expectation of privacy, you'd need their permission to take the photo.
But just because you catch the person out in public, that doesn't mean you're free to use the image or footage in any way you please…
You see, here in the US we have the First Amendment to our Constitution… Which creates, among other things… freedom of speech and of the press… and those freedoms are a big part of this analysis…
Most folks don't realize that under the law, there are different kinds of speech, and the right of the government to make laws that impact speech varies just a bit depending on the purpose of the speech.
True artistic expression, whether it's a blog, a poem, or a novel, along with political commentary, news reporting, and other so-called “editorial” type uses are given a wide berth… And those First Amendment freedoms are very strong. Laws that abridge them are invalid… plain and simple. That's why publications like People Magazine, the national Enquirer, and programs like TMZ are able to use the footage they capture without anybody's permission.
But speech directed at getting someone to engage in a business transaction of some sort, “Commercial Speech,” is treated a bit differently. Laws that regulate commercial speech ARE allowed, when there's an important government interest at stake, and the law is reasonably related to that interest. So, under most states' laws… it's NOT ok to use a photo you catch of someone in a public place as part of an advertisement.
That's what got Duanne Reade drugstores into trouble when they tweeted an image of Katherine Heigl carrying one of their shopping bags out to the world… Ms. Heigl didn't like it one bit, and she sued… her right of privacy wasn't invaded, but her right of publicity (the right to control commercial use of her name and likeness, probably was. Now, what's interesting is that if TMZ had tweeted the same image, just reporting that Katherine was seen in NYC shopping… it'd probably have been fine. But because the message came directly from the store's twitter account, it took on a different, more commercial, meaning, it looks like an endorsement… and gives rise to possible liability.
So, if you photograph or film your friend, or even a stranger, and then use the photo to illustrate a story on your blog… it's probably more of that “editorial” kind of use… But if you're using the blog post to sell something, it could cross over into the commercial arena… and you could be in a predicament.
But watch out … there's one more potential pitfall. You have to be careful that the juxtaposition of the photo with your blog post doesn't create a false implication. For example, say you use a photo of a grandfatherly looking man sitting on a park bench, as part of a blog post about child molesters. Even if you don't SAY “this guy's a child molester”, the mere implication could be the basis for a defamation lawsuit.
That's why we lawyers recommend using a model release whenever possible. And that's the special bonus I mentioned. I've got a free sample model release you can download and use when you take photos to use on your blog or whatever. Just Jump on over to http://firemark.com/modelrelease to get it.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.