A. What Is a Release?

A release is a binding contract in which someone foregoes a right to sue you for specific types of claims. Without a written release, if you reproduce photos, video or other representations of an individual, that person might be able to bring you into court for various violations of personal rights. These include defamation, the right to privacy and the right of publicity. Each of these legal claims is discussed in more detail below.

It's generally best to keep releases as short and simple as possible. That's because people are often asked to sign releases under short notice and may balk if the document is complex or intimidating.

As a general rule you will not need a release for the use of a person's name or image if your use is not defamatory, does not invade privacy and is not for a commercial purpose. For example, a celebrity's photo can be used in a news story without a release. Remember, however, that you often will need to obtain copyright permission from the owner of the photograph.

1. Invasion of Privacy

Every person has a right to be left alone --this is called the right of privacy. A release is needed to use a living person's name or image in a manner that constitutes an invasion of the person's right to privacy. Releases are vital because a person whose privacy is invaded can sue for monetary damages. Generally, invasion of privacy isn't an issue for individuals who are dead.

There are several different ways a person's right to privacy can be invaded, including any of the following:

• False Light. This type of invasion of privacy occurs when an individual is falsely portrayed in a highly offensive manner --for example, posting a photograph of a man who has never committed a crime at the "America's Most Wanted" website.
• Disclosure of Private Facts. This invasion of privacy occurs when private or embarrassing facts are disclosed about an individual without relation to a legitimate public concern.

• Intrusion. Intruding upon situations in which people have a reasonable expectation of privacy--for example, spying on a person at home, secretly eavesdropping on conversations or opening mail--can give rise to an invasion of privacy claim. However, it is not an invasion of privacy to photograph someone in a public place or at any event where the public is invited. Such photos can be used freely for informational purposes, provided that the use does not defame or hold the individual up to a false light.

2. Right of Publicity

The right of publicity grew out of the general principles of invasion of privacy that prohibited the appropriation of a person's name or likeness to gain some benefit. Within the past few decades, the right of publicity has emerged as an independent type of claim that can be made when a person 's name or likeness is used for commercial purposes. Although the right of publicity is commonly associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image to sell products. The right of publicity extends beyond the commercial use of a person's name or image and includes the use of any personal element that implies an individual's endorsement of a product, provided that the public can identify the individual based upon the use.

The right of publicity extends to a performer's identifiable voice. For example, in two separate cases, advertisements that used vocal performances that sounded like singers Tom Waits and Bette Midler were found to violate the singers' rights of publicity. In both of these cases, the advertising agency had sought permission from the performer and when it was not granted, the singer's voice was deliberately imitated--a good example of what not to do. As rule of thumb, if the performer 's voice mimics a well-known performer, either accidentally or intentionally, avoid using it.

In many states, the right of publicity survives death and can be exercised by the person's estate.

3. Defamation

Defamation occurs when information is published about a person that creates a false impression and injures the person's reputation. Defamation is often divided into two categories: slander, which is an oral comment made to others, and libel, which is a fixed statement, whether printed, broadcast or published electronically. The rules for both types of defamation are similar. A deceased person cannot be defamed but a false statement that reflects on a living relative can cause defamation. In addition to personal defamation, a corporation or partnership can also be defamed if a false statement affects the business's integrity, credit or solvency.

The key to determining defamation is the injury caused to the victim's reputation in the community. The term "community" can be interpreted to mean a narrow group of persons acquainted with the injured person. Courts have permitted claims for statements that ridicule, humiliate or subject the victim to contempt.

If the information that is published is true, there is no defamation. Or, as some courts have stated, the truth is an absolute defense to defamation. Literal truth in every element is not required, provided that the statement is substantially true.

There are exceptions to defamation rules for politicians and celebrities and, to a limited extent, for people who have become the subjects of a public controversy. These people, because they are in the public eye, are expected to have tougher skins and can only be defamed if it is proven that the false statements were made with actual malice and a reckless disregard for the truth --for example, a website owner posting what he knows to be false information about a celebrity's sex life.

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