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The Legal Issues of Photography

By Sarah Skinner

This article covers what you should know and understand about photography and the use of your image. These points apply when going to any photographer. Though I am not a lawyer so please don't take what's said here to be legal advice.

When a photograph is created, it is copyrighted to the photographer. The photographer or his agent has the exclusive right to exploit the copyright in each image. That right is for the life of the photographer plus 70 years. Any unauthorized use constitutes an infringement. Permission to use a copyrighted photograph for any purpose whatsoever must be obtained in advance in writing to avoid possible violation of the federal law on copyright. For example, if someone takes a photo of you and you wish to put it in a magazine- you must get approval from the photographer first. They have the legal right to say no or the photographer may ask for additional payment for use of that copyrighted photo or ask for photo credit (as a photographer, I would only say no if it didn't present Oriental dance in a positive and uplifting light).

Model release is important to the photographer if the photos have recognizable people in them. A person's likeness can not be used for the purposes of selling a product or service without their permission (i.e. a signed model release). This is a fundamental, constitutional "right of privacy", and there are similar laws throughout the world.

The very first thing you must understand is the difference between an "editorial" use of a picture and a "commercial use" of a picture. Simplistically stated, if a magazine or newspaper uses a picture to illustrate an article they are doing on, say, the environment, that is an "editorial" usage of the photo. The picture is being used to illustrate the editorial content of the article. It varies widely, when, in fact, it's "okay" to use a picture of a person for "editorial content", even without their permission, and when it's not.

If, in that same magazine or newspaper, the same photo is used in an advertisement for a detergent, with the idea of promoting sales of that detergent product, that is a commercial use of that picture.

The legal requirements associated with the use of a model in those two different ways are vastly different. In the latter case, you are using a person's likeness to promote a product or service, meaning that you are using the image for "commercial purposes" and the photographer must have the person's permission to do so in the form of a valid "model release".

There are certain circumstances where you cannot use a photo commercially even if a valid model release has been signed. Defamatory, humiliating, or libelous uses are specifically and emphatically PROHIBITED!

U.S. and International law does NOT ALLOW "libelous" or "defamatory" or "humiliating" uses of a person's likeness even if a general model release has been signed.

Examples: someone is doing a brochure for an alcoholism treatment program. They take a picture of a 45 year-old man off a royalty-free disc and put him under the headline, "Two Quarts of Vodka a day-- And Still Ticking." Or you're doing a magazine article about incontinence in the elderly. Or the headline of your ad is, "Only a Guy this Stupid Wouldn't Buy our Product." They can't do it. If you read the fine print of virtually every photo agency's license, you will see that this sort of thing is expressly prohibited, no matter what.

When a client needs to use an image for this type of ad they need to obtain a specific release from the model for the specific use they have in mind. It will involve an additional fee paid to the model. It is the models right to turn it down. The client may not use an image in this fashion without specific permission from the model to do so. It's the law.

If a model release has not been signed: a photographer can take a photo of you and as long as the photographer is not selling a product with that image they can use it. For example they can not put someone's image on their business flier (because they are selling their service) but they can put it in an art show and sell the photo as art.