Whether you need to obtain a release depends on why you want to use a person’s name or image. If your use is for commercial purposes—for example, using a person’s photo in an advertisement—you need to obtain a release. If your use is for informational purposes such as a documentary film or news article, you may not need a release. However, even if a release is not required, you should be careful that your use does not defame or invade the privacy of the individual. If there’s any potential that your use might violate these laws, a release will provide legal protection. Sorting out these differences can be confusing; examples are provided below. When in doubt, however, obtain a signed release.
You do not need a release to use a person’s name or image for informational purposes. An informational (or “editorial”) purpose is anything that informs, educates, or expresses opinions protected under the First Amendment of the United States Constitution—freedom of speech and of the press. An informational use would include using a person’s name or photograph in a newspaper or magazine article, educational program, film, nonfiction book, or informational website.
If you use a person’s name or image in an informational publication, you may also use that name or image in incidental advertising for the publication. For example, in an advertisement for a publication that includes an interview, you may state “Featuring an interview with Johnny Depp.” However, to use a person’s name in an advertisement posing as an informational publication, you need a release.
Even if your use is informational, a release may be required if the person’s name or image is used in a defamatory manner or invades the person’s privacy. It may seem odd to seek a release for a use that may defame a person or invade privacy. After all, why would anyone sign a release for a use that would create a false impression? Such releases are usually used in cases in which a model or actor is posing to illustrate an article, such as “The Horror of Date Rape.”
You need a release for the commercial use of a person’s name or image. A “commercial use” occurs when a name or image appears while a product or service is being sold or endorsed. For example, if your website offers hair products and features photographs of people using the products, you would need a release from the people in the photos. You do not need a release if the person cannot be recognized in the photo: for example, if the photo only includes the person’s hands.
Several decades ago, the failure to obtain such a release would have led to an invasion of privacy lawsuit. However, the “right of publicity” has now become the more popular claim for those whose names or images are used for commercial purposes without their permission.
Is Your Use Commercial or Informational?
Unfortunately, there is no definitive test that tells you whether your intended use is informational or commercial. Below are summaries of cases that straddle the border between informational and commercial uses. Cases with similar facts may seem to have different results because judges have broad discretion in making these determinations.
- Informational use. A photo of football player Joe Namath was featured on the cover of Sports Illustrated and later used in advertisements to sell subscriptions to Sports Illustrated. No permission was required because the initial use of the photo was editorial and the subscription ads were “merely incidental” to indicate the nature of the magazine contents. (Namath v. Sports Illustrated, 371 N.Y.S.2d 10 (1975).)
- Informational use. The National Enquirer and USA Today conducted telephone polls about the musical group New Kids on the Block. Use of the names and images of the members of the group to publicize the newspapers’ profit-making telephone numbers did not require permission because it was primarily for purposes of “news gathering and dissemination.” (New Kids on the Block v. News America Publishing Inc., 971 F.2d 302 (9th Cir. 1992).)
- Informational use. Public domain film clips of Fred Astaire were used as a prologue to an instructional dance video. The use of Mr. Astaire’s name was permitted in the prologue based on the informational content of the video. (Astaire v. Best Film & Video Corp., 136 F.3d 1208 (9th Cir. 1998).)
- Informational use. A film company that acquired the rights to rerelease two 1950s films featuring actress Betty Page commissioned drawings of Ms. Page to promote the films. Ms. Page sued to prevent the use of her image and name to promote the films. A court permitted the use because the advertising was incidental to the rerelease and was “newsworthy” due to the reemergence of the two 1950s movies. (Page v. Something Weird Video, 960 F.Supp. 1438 (C.D. Cal., 1996).)
- Informational use. Following a Superbowl victory, a San Jose newspaper sold posters of quarterback Joe Montana. Mr. Montana sued but, in a surprising ruling, a court permitted the use, claiming it was newsworthy because of the “relatively contemporaneous” publication of the posters with the news event. (Montana v. San Jose Mercury News, 34 Cal.App.4th 790 (1995).)
- Informational use. Los Angeles Magazine printed a fashion article that featured a digitally modified photograph combining Dustin Hoffman’s head with a male model’s body in a gown and woman’s shoes. The text stated: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.” Although one effect of the use was commercial—promoting the specific designers—the Ninth Circuit held that the use of Hoffman’s head on another model’s body did not violate the right of publicity and was permitted under free speech standards. Hoffman v. Capital Cities/ABC Inc., 255 F.3d 1180 (2001).
- Commercial use. During the NCAA tournament broadcast, an ad for Oldsmobile featured a voice asking who held the record for being voted the most outstanding player of the tournament. The answer printed onscreen “Lew Alcindor, UCLA, ’67, ’68, ’69.” (The basketball player Kareem Abdul-Jabbar was previously known as Lew Alcindor.) The ad stated that Oldsmobile was the winner of a Consumer’s Digest award three years in a row and ended with the statement, “A Definite First Round Pick.” Abdul-Jabbar sued, claiming that his name was used without permission. The court decided in his favor, ruling that although the advertisement provided information, the overall effect was commercial and required permission. (Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).)
- Commercial use. A photo of Cher was featured in Forum Magazine and was later used in advertisements for subscriptions to the magazine. Beneath Cher’s photo in the advertisements was a caption implying Cher’s endorsement of the magazine. The implied endorsement created a commercial use of Cher’s name that distinguished it from the Sports Illustrated case involving Joe Namath, above. (Cher v. Forum Inter. Ltd., 692 F.2d 634 (9th Cir. 1982).)
Are Websites Commercial or Informational?
Can a website be informational if its primary purpose is to promote a business? Websites raise many of the issues highlighted in the cases described in the previous section. Several factors determine whether the use of a name or image on a website is commercial or informational:
- If the use of the name or image at the website relates to a newsworthy event, the use is more likely to be informational.
- The more website space devoted to selling, the less likely the use is informational.
- The longer the person’s name or image remains at the site, the less likely the use is informational.
- The more separation between informational content and the sponsorship of the site and related advertisements, the more likely the use is informational.
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Releases and Free Speech
You can use a person’s name or image for commercial purposes without permission if the commercial use qualifies as free speech. Generally, this occurs when the use is categorized as a parody. (For more information on trademark parodies see Chapter 10. For more information on copyright parodies, see Chapter 9).
For example, a company sold trading cards featuring caricatures of major league baseball players. Text on the cards ridiculing player salaries and egos included a statement: “Cardtoons baseball is a parody and is NOT licensed by Major League Baseball Properties or Major League Baseball Players Association.” A federal court permitted the use of player’s names and caricatured images as free speech. (Cardtoons v. Major League Baseball Players Assn., 838 F.Supp. 1501 (N.D. Okla., 1993).)
However, individuals wary of litigation should weigh the consequences and costs of a lawsuit before claiming a free speech right to use an individual’s name or image.