Legal Risks of Failing to Obtain a Release

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 and invasion of the right to privacy or the right of publicity. Each of these legal claims is discussed in more detail below.

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Invasion of Privacy

Every person has a right to be left alone—this is called the right of privacy. You need a release 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 the person whose privacy you invade can sue you for monetary damages. Generally, invasion of privacy isn’t an issue if an individual is deceased.

There are several different ways a person’s right to privacy can be invaded, including:

• 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 at the “America’s Most Wanted” website, even though he has never committed a crime.
• 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.

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• 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.

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Right of Publicity

The right of publicity grew out of the general principles of invasion of privacy that prohibit using a person’s name or likeness to gain a benefit. Within the past few decades, the right of publicity has emerged as an independent type of claim that a person can make when his or her 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. This right also prohibits any implication that a person endorses a product (without the person’s permission).

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, hired someone to deliberately imitate the singer’s voice—a good example of what not to do. As a general rule, if your performer’s voice mimics a well-known performer, either accidentally or intentionally, don’t use it.

In many states, the right of publicity survives death and can be asserted by a person’s estate.

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 printed, broadcast, or published electronically. The rules for both types of defamation are similar. A deceased person cannot be defamed, but a false statement about a deceased person can be defamation if it reflects badly on a living relative. 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 a defamation claim is determining the injury caused to the victim’s reputation in the community. The term “community” can be interpreted as narrowly as a small 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. Because they are in the public eye, already subject to public attention, these people are expected to have tougher skins. They 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.