WHAT IS IT HARD?[1] Photography Part 2

                                               

Many of you may recall that in part 1 of this two-part series, I addressed the perils of trademark and copyright infringement lurking within innocently created photographic images and electronic images. In this article we address the additional landmines of: rights of publicity, as well as false light and other invasions of privacy liabilities.  Whenever photographers commercialize images, they should vet all these potential legal hazards: This is an important review even if under U.S. law the photographer initially owns all the copyright to an image.[2]

In the United States, the right of publicity preserves an individual’s control over his or her own physical appearance, voice, likeness and image, as well as distinctive personal attributes and recognizable features [that is, the persona].[3] Moreover, in some states the right of publicity remains enforceable after death. The right of publicity protects economic interests so each person may exclusively profit from displaying or otherwise publicizing his or her persona. For example, third persons are liable if they misappropriate a persona to, although not exclusively, falsely endorse a product.   Although most court cases involve celebrities, all persons have this right to control and profit from their own personas. For these reasons, a photographer should initially obtain the written permissions of individuals prior to creating images, and especially if these images will be used commercially.

Photographers and other image creators should also refrain from portraying persons in a manner known as false light.[4] False light liability is a member of the family of misdeeds collectively known as invasion of privacy. False light liability protects a person from intentional or reckless widespread distribution of an image which, although bona fide, results in a misleading derogatory impression which would offend most people. An example of potential false light liability comprises a photograph of a corporate officer who has been indicted for bribery. Unfortunately, in the same photograph, next to the corporate officer and clearly recognizable, is an innocent bystander. The implication is there is an association with the indicted individual, and this association could injure the bystander’s reputation in the relevant business community. That the photograph is a bona fide and accurate image is not a defense if there is false light liability.

Other invasions of privacy in photography include disclosure of private facts without consent of a person who is visible in the photograph or image.[5] An example of this liability would be the public display of a photograph for a person recovering from a face lift. Another actionable invasion of privacy comprises intrusion into private affairs or facts without consent.[6]Intrusion differs from public display of private facts, because liability exclusively arises from obtaining the photograph from a location in which the photographer had no right to be. Intrusions, such as stalking and repeated attempts to take a person’s photograph without consent, may also be actionable. However, a court may subordinate privacy rights if a person’s image is newsworthy or of significant public interest.[7]

© Adrienne B. Naumann 2021. All rights reserved. Ms. Naumann does not sponsor or endorse the advertisements at adriennebnaumann.wordpress.com.


[1] Elle Woods in “Legally Blonde.”

[2] See W.L. Prosser, LAW OF TORTS, pp. 802-83 [West Publishing Co.: St. Paul 1979].

[3] Zacchini v. Scripps-Howard Broadcasting Company, 433 U.S. 562(1977).

[4] See Benton v. Little League Baseball, Inc., 2020 Ill. App. 190549.

[5] Pepper v. Battle Creek Health Systems, 2020 Mich. App. Lexis 4866.

[6] Lunsford et al.  v. Sterilite of Ohio, L.L.C., 165 N.E.3d 245 (Ohio App. 2018).

[7] See Harvey v. Systems Effect, LLC., 154 N.E. 3d 293 (Ohio App. 2020).

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