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Tuesday, April 10, 2007

Model Releases and "Publicizing"

I got an email from someone that warranted further clarification on the issue of model releases: that of "publicizing."

On Apr 6, 10:18am, aozolins@ithaca.edu wrote:
I wanted to ask you about the specific case of public schools, where the staff are adamant that no child's picture can be "publicized" -- a term even more restrictive than "published" in their minds. Of course, sneaking into classrooms to shoot kids would be one thing. But, pictures of kids working on a common project outside the school on a weekend -- a place fully public and accessible. Are pictures showing recognizable kids in that situation a problem to publicize?

The photos in question are here.

First, just "showing" a photo on a website is not sufficient by itself to raise legal questions about "publicizing." For a legal claim to be viable, the photo would have to draw out a fact about someone that he may not want others to know about, or to be associated with a thing or idea (or people) that may be considered generally offensive (that is, to an objective observer).

A recent example of this is when photos of presidential candidate Barack Obama's daughters were posted on a website that advocates pedophilia. (A link to that site isn't included here--I see no reason to provide yet another valuable link source to a site that doesn't deserve it; however, you can find the story and links to the site in question on the websites of any major news organization that reported the story.)

There was nothing compromising about the photos themselves; it was simply the fact that they were there that raises the (obvious) objection. The term, "publicize," was used to expressly bring legal strength to the claim that, because the senator is in the news and is running for president, the use of his two daughters' photos goes beyond editorial use. Even though the site's use of the image was not commercial in nature, nor did it even say anything about them, the use of the images might cause the viewer to associate the girls' photos with the subject matter.

Perhaps it's the extremely simple case where nothing is said that raises the volume so high on its implications. For example, religious and political statements, whether as websites or other forms of media and communication, typically require a release because these uses are almost always found to imply advocacy. However, they often get around this by making a statement of some sort, such as showing a photo of a pro-choice Hollywood actress with a caption stating that the newsletter disagrees with this person's views. Here, the use of the photo is clearly editorial, even though the periodical in question may not be. (Religious newsletters tend to get in more trouble than they like because there tends to be a stronger leaning of the language towards a religious doctrine than of "news," which is why they have to be far more careful about their use of images than the traditional press.)

Yet, without clearly overarching cases such as the religious, political and sexual examples discussed so far, "publicizing" can find itself in that odd grey zone between editorial and commercial use. The more common example of inappropriate publicizing is where facts about a person are made available in a way that are not newsworthy, and which the person has a right to be kept private. Such as stating that someone is gay for no apparent reason. Disclosing that a priest is homosexual may be considered newsworthy to an evangelical congregation, but a photo of a child on the playground stating he's gay is entirely different. This is an example of the kind of publicizing that the guy who emailed me is talking about. But remember, the photo would have to clearly illustrate the point. A photo of kids working on a project together as stated in the email excerpt above doesn't imply anything, and the text associated with it only discusses the fact that they are working on a school project.

And this brings us back to a point made earlier: it's rarely the photo by itself, but the text associated with it that one typically finds claims of publicizing. If the photo were to appear associated with a story on how gay children are perfectly happy associating with non-gay children, it would imply that at least one of the children in the photo is gay, which then raises a concern about publicizing. If the claim were true, then it might be something that the child (and his parents) might not want to be made public. If it's not true, then there'd be a case of libel.

One thing to be aware of is that these examples are more about matters of law that have nothing to do with photography or even having releases. You can easily publicize something about someone without using photos. That photo is involved only adds to the "publicizing" act, but it doesn't suddenly draw in a new issue on the lack of a model release. When people think of model releases, they think that a release can be written broadly to cover unrestricted uses. But it's not the photograph that's subject to this. It's the use of the photo that's of concern. Indeed, someone could sign a model release permitting unrestricted use of a photo, but that photo can still be used in a way that publicizes a fact about that person that he doesn't want people to know about. The publisher of the photo (who may also have written the caption) may not be successful in using the argument, "he signed a release," unless the release expressly permitted the text in question to be used.

On the other hand, if the photo of the kids in the playground showed them injecting themselves with syringes, and the caption said, "these kids are on drugs," then the matter of libel or publicizing may be harder to claim. One could even use ultra-Americanized sensationalized headlines, like "Are YOUR Kids Safe in America's Playgrounds?!" (Of course, if one of the children is a diabetic, and he's merely taking his insulin, then the publisher may find himself in hot water again.)

This brings us closer to the basics of model releases, though, where photos taken in the public are permitted, and the uses of those photos can be used in "non-commercial" contexts. I realize that "non-commercial" opens a big can of worms, and that 90% of the public doesn't fully grasp what really is and isn't a commercial use, but that's beyond the scope of this discussion--one must read my chapter on model releases for that.

Still, matters of publicizing and libel are among many reasons why companies that make ads for sexual dysfunction drugs would (should) never license an image from an agency or photographer without specifically seeing the actual written release that the model signed. No matter how broad a release may be, it's not a far stretch to see a silly claim made by a male model whose fiance decided to leave him because she was tired of being laughed at by her friends and coworkers because photos of her spouse-to-be are plastered all over magazines with a quote that reads, "I've fallen and I can't get up!"

Now, before we get our undies up in a bunch about all this, understand that issues of libel are extremely serious with a high water mark to prove. The first amendment tends to lean more on the side of an open press for editorial uses; and as for commercial uses, there is certainly an accepted understanding that when professional models get paid to be photographed, and they sign releases for the use of those pictures, any claim of mis-use of that photo will be looked upon by a judge with skepticism.

Insofar as the the photographer is concerned, his responsibility is fairly black and white--if he knowingly licenses a photo to someone who will use it in an inappropriate way, then the photographer could be held partially liable. But this is going to be extremely rare; more often than not, the publisher is not going to tell the photographer that his intended use of the photo is to make a claim that could be found to be libelous, or that they will inappropriately publicize a fact about that individual.

Which brings us back to the case about the photos of the kids working on a project together, and the objections the school raised:

The school didn't make me take it down but I was given to understand that pictures of kids (without unobtainable releases) were not permitted by the school.

Unless there's something more to the story than I'm aware of now, they're wrong, but feel vulnerable. Anyone with kids can certainly understand how a school may feel awkward, knowing that some man is taking photos of the kids and posting them on a website, and that there's nothing they can do about it. (The least informed person will probably be the one to say, "you can't do that without a release.") I read an article in the New York Times a year and a half ago about how some camps were trying to shut down certain online discussion forums where kids were talking about their experiences at the camps, including photos they took with their digital cameras and cell phones. The sites were nothing more than online discussion groups, attended by the kids that went to the camps. As any discussion may go, some good comments were made, some bad. But, the camps were trying to have the sites remove the pictures (and the discussions) because they feared that kids may say something negative about their own camp (whether truth or lie). They tried using the very argument the the school gave the guy who emailed me above--that "releases are required." But so far, the courts haven't agreed. The statements and photos were editorial in nature, and more importantly, were not publicizing in nature. There was no information that the camps had a right to be kept private, and nothing libelous was said. So, the discussion boards--and photos--remain.

On a pragmatic basis, my model release chapters talks about the social problems of doing things with photographs that may be technically legal, but socially dangerous. As I told the guy who emailed me in my response, "You just ran against that here. There's nothing wrong with your photos having been taken, or their being placed online. I'd say that what I see on that site is perfectly within the law. But it isn't going to make you very popular with the school. That's really more of the issue you'll have to deal with than any legal concerns."

In the end, one needs to keep in mind that, like any other case involving releases or libel or publicizing, a judge is going looking for "intent." I'd be hard-pressed to believe a judge would take objection to the page showed at the beginning of this article. (This is probably why the school is not being more aggressive and asking that it be removed.)