"Commercial Uses" and Model Releases

In my last blog post, "Myth-Busting Model Releases", I received quite a bit of email from people about "commercial uses"of images, pointing to other discussion forums where, again, myths and hearsay prevailed among many misinformed, but well-intentioned photographers.

The common assumption is that "commercial uses" of images require model releases, but that's not actually true. The sole trigger for whether a release is required rests on whether the subject can be perceived as supporting or advocating a particular idea, product or service. True, many "commercial" uses of images do have people appearing to be advocates, and this is where the oversimplification begins. People overlook the many commercial uses where a person can be presented without appearing to be a supporter or advocate. Similarly, there are non-commercial uses that do portray the subject as a supporter or advocate, which would require a release. Two examples follow:

On the commercial side, there are companies that sell books, magazines, newspapers and other forms of media. While the content of their media may be editorial in nature (which doesn't require a release), the promotion of their products is commercial in nature. Just because they may be promoting an editorial product, it's irrelevant. Promotion is a commercial activity. Full stop. But again, "commercial use" does not itself trigger the need for a release.


For example, a highly critical book about Rush Limbaugh ("The Most Dangerous Man in America"), by John Wilson) sports a photo of Rush himself on the front cover. And given the scathing nature of how Rush is portrayed in the book as an irresponsible, sexist, racist, ideologue, one would expect that Rush signed no model release or provided consent of any kind to have him or his likeness be associated in any way with this book. Obviously, the text is editorial commentary about the controversial radio host, so no consent is necessary for using the photo on the book itself.

But what about the promotion and advertising for the book? Both of those are "commercial" in nature: profits are made, and the book itself is a product. Again: promotion is "commercial use." Full Stop. So, one would think that Rush would have his lawyers find any legal position possible to stop or slow down the supply chain, from the photographer to the stock agency to the publisher. Yet, there it is in full color, used to both promote and advertise the book.

The reason a release is not required is not because this was the photo used on the book, but because this photo—or most any photo—would not cause a common person to believe that Rush is an advocate or sponsor of the book. (If there were a photo of Rush standing proudly next to a poster sized replica of the book, then such a photo could suggest he advocated the book, although the existence of such a photo would be unlikely.)

So, the fact that a photo is used as part of a promotion is a red herring. Photos may be on web pages, in portfolios, and presented for sale, yet the "advocacy" question is not satisfied simply because photos are displayed. There has to be more context to imply advocacy.

This is true of non-commercial uses as well. Non-profit companies often believe they can use photos of people in their materials because they are implicitly "non-commercial." But again, the determining factor is whether the person could be perceived as an advocate or sponsor of the organization.

Speaking of supply chain, note that the photographer who shot the photo of Rush Limbaugh didn't need a release to take the picture or to sell the image; he didn't need to know what the buyer was going to use it for, assuming he was even aware that someone was buying it. Similarly, a stock photo agency can display the image online, which is how the book publisher (Thomas Dunn Books) found it.

The moral of the story is, take "commercial use" out of your vernacular, and only focus on the "advocacy" question. And while that's the right place to start, such assessments are not always easy; people disagree on specific cases and argue incessantly.

A common example is photographer's own self-promotional pieces. Naturally, most believe that these are "commercial use" of images, but again, that's not the sole trigger. Most images used as part of a piece that promotes someone as a photographer is almost universally interpreted by the public as "examples" of the artists' work, not necessarily as advocates for them. Such an assertion would require text, often in the form of a quote praising the photographer's work. That context would require consent from the person depicted.

As for being in the business of selling photos, photographers are never responsible for having to know the answer the "advocacy question." Someone else is going to publish their pictures, which means that the buyer bears the risk. Photographers or stock agencies can't be responsible for how other people use the images they acquire, especially because one can't make the advocacy assessment until the photo is ultimately put to use, which is long after the financial transaction took place.

Lastly, there are portfolios: Photographers do not need releases for photos for these.

First, a portfolio is rarely considered a "promotional" item, unless it's put together very poorly. Professional portfolios consist of a collection of artistic works that demonstrate the skills and talents of the photographer. For any given image to be interpreted as to suggest the subject were an advocate for the photographer, particular text would have to be used, which is not typical for a good portfolio, which means that permission is not required in order to use photos of people. This includes all forms of publication of the portfolio, whether in physical form, or as a website, or other media.

The one thing to be aware of, however, is that sometimes photographers take pictures of people in special, "closed sessions," where an agreement was made ahead of time—before the photo was taken. If a subject posed for a photographer with the pre-arranged agreement that the photos would not be used in a portfolio or any other manner, than that agreement takes precedent. (Of course, a new agreement, such as a model release, can supersede it.) Such an agreement would have to be established first--it cannot be retroactively enforced.

That said, any good photographer would honor such a request, even if he or she didn't have to.

Orphan Works Fallout? History may lend a clue.

Wonder what the fallout will be if the Orphan Works Act passes? History may lend a clue.

Yes, the outrage (among photographers) continues to boil over the Orphan Works Act, the bill congress is considering, which limits the remedies in a civil action brought for infringement of copyright in an orphan work. I've written about it before, but the arguments still seems to be heated. In recent discussions I've had (and that I've read on other blogs and discussion forums), it's pretty clear that what people are worried about are that photographers' rights would be jeopardized, that rampant infringement would take place because it'd be too easy for infringers to establish a work as an "orphan," and that photographers would not be financially able to protect their copyrights.

While these are reasonable concerns, the question is whether they are justified. Is the language of the bill too broad? How can we test or measure what the real ramifications might be? I had an idea that would help people gain a more realistic perspective on this, and I tested it out on a few people who were vehemently against it. I began by tossing a few hypothetical situations their way. I asked, "How would you feel if..."

1. A publisher wants to reproduce your concert photos of a famous band for a book ... without asking you, paying you, or giving you attribution.
   
   
2. The makers of a movie biography of a famous fighter wants to use excerpts of your published footage ... without asking you, paying you, or giving you attribution.
   
   
3. A movie company wants to copy one of your ideas for a photo of a woman, and superimpose the head of an actor on top of it for use on a poster that promotes the movie ... without asking you, paying you, or giving you attribution.
   
   
4. A university wants to download photos on your website to use in an overhead presentation to be used in the classroom for a business course they offer every year ... without asking you, paying you, or giving you attribution.
   
   

Every person to whom I posed these scenarios reacted with outrage. Then I asked, "Do you think the Orphan Works Act would permit this?" Each said yes. Emphatically. In fact, one person said, "And it's because of ridiculous and outrageous scenarios like those that we must stop this bill immediately!"

Do you agree?

Here's what most people don't realize: All of these scenarios are already permitted by the Fair Use provision of the Copyright Act. In fact, not only are these cases permitted, but they've already happened. Moreover, each case (except for one) has been taken to court, and the court has ruled in favor of the user of the work, not the copyright holder.

Another surprise that may shock you: the works in question were not orphaned works; the copyright holders were known in advance, yet were still not contacted by the user. Here are the facts of each of the cases noted above:

1. Regarding the reproduction of concert photos in a book: In the case of Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the Second Circuit focused on the fact that the photos that were used had been reduced to thumbnail size and reproduced within the context of a timeline.
   
   
2. Regarding the makers of a movie biography: the movie was of Muhammad Ali, and the filmmakers used 41 seconds from a boxing match film. The court found that the portion of film that was taken was used for informational purposes. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)
   
   
3. In the case involving the movie poster, a movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. The court ruled that the movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)
   
   
4. As for the university that wants to use a photo from your website in an overhead presentation, this kind of "face-to-face" electronic use of a photo in the classroom has been considered (de facto) Fair Use, and has never been challenged in court. (See here.)
   
   

So, what does this have to do with the Orphan Works Act? After all, if things are this bad with existing copyright law, the OWA will only make things worse, right? Well, that's where we need to gain some perspective, and draw upon history to help us forecast what may happen.

When the Copyright Act was under consideration, there was quite a bit of pushback from artists of all sorts, using arguments you hear today: that the Fair Use provisions are too broad, and that artists will lose the strength of their copyrights, and the ability to file claims would be prohibitive because the expense to do so would be too much of a financial burden for most artists. If works could be used for free, without attribution, or even permission, even though it may be clear who the copyright holder is, a court case is but an uphill, expensive battle. Moreover, the Fair Use provision could apply to anyone at all. The list of permitted uses was so broadly defined, that just about anyone would be able to do anything with a copyrighted work and call it "commentary," or "satire/parody," or "news reporting." Any of these are permitted under fair use, and it'd be an uphill battle to refute such claims..

Were those fears realized? Did that actually happen? The scenarios I described above would make it appear so. But, upon closer examination, history tells a very different story. The cases above are extremely rare exceptions, and were ruled under extremely narrow circumstances. Very similar cases come up far more often that not only don't get ruled as Fair Use, but continue to set new precedents all the time in favor of copyright holders, not users. Most infringers who use works and try to hide behind the Fair Use provisions fail in court and end up paying large sums of money to copyright holders, including their legal fees.

Why weren't the fears of the Fair Use Act realized? Simply put, judges know and understand the spirit of what the Fair Use provisions were intended to do: recognize that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public.

Today, I have never read any credible criticism the the Fair Use provision of the Copyright Act, and in the 13 years that I've been a pro photographer, never have I heard anyone complain that their businesses are ruined by Fair Use, that they have lost any financial opportunity, that they have had a hard time enforcing their copyrights, or that there is a rampant misuse of images by those who hide behind Fair Use.

In fact, courts have been so "balanced" in their application of Fair Use provisions, that warnings to users about Fair Use are abundant. From Stanford University's section titled, "Disagreements Over Fair Use", there's this:

"... there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies--but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place."

Sound familiar? I'll come back to that in my next blog entry, to be announced soon.

Non-commercial uses of images: do non-profits need model releases?

In the spirit of my recent accouncement of my latest book on model releases, I thought it apropos to post a blog entry I have had in the queue for a while: whether non-profit organizations are immune from the need for model releases for whatever they publish: promotions, newsletters, fund-raisers, etc. At the heart of this question is what is meant by "commercial vs. non-commercial use."

It started when I read a blog entry from a site that caters to non-profits. It had this text:

"...if you are publishing a photo for information or educational purposes, not commercial purposes like product advertising, you can typically print it without a model release. The majority of non-profit publications fall into this category."

The premise here is erroneous: that non-profits fall into the category of "non-commercial users." This is not the case, and this misunderstanding lies in what is meant by "commercial use." Most people associate this expression with advertising and promotion of for-profit products and services. Yet, those are not the only uses covered by the law surrounding privacy and publicity laws. And it's those laws that stipulate whether consent is required from a person to publish a photo of them. (A model release is what grants that consent.)

These laws are not based on "commerce" as people traditionally think of it, but around how people are represented, regardless of the kind of business the publisher (user of the photo) happens to be. Whether a person's likeness is being used to advance a cause, an agenda, or any number of things, these are really the core of the intent of the law.

Federal statutes exist that protect people's rights of publicity, and about half the states in the US have additional statutes that go beyond those basic principles. A good example of this is found in the California Code 3344, which can be viewed here.

You'll note that there is no text in any of this language that talks about whether money is made, or the status of the publisher of the image, such as whether it is a for-profit or non-profit. This is not what is meant by "commercial"... Instead, it really refers to "in the course of business," and to differentiate the use from news reporting and other uses protected by the First Amendment.

For purposes of model releases, it's the use of the image that matters, and non-profits are businesses, like any other: they have staff, letterhead, advertising and marketing budgets. This is all part of "normal course of business," otherwise known as "commerce." Accordingly, when they publish photos of people, there may be a need for model releases that applies no differently than for for-profit companies.

Further supporting the notion that the law is not intended to exempt non-profits is the fact that the statute does not define what "services" are. A non-profit that delivers food to the homeless is providing a service, as is a non-profit that advocates humane treatment of animals, or that provides assistance to war veterans, or religious groups that teach reading, or HIV/AIDS groups that provide support services, or gay and lesbian organizations, and so on. If the assumption made by the quote on the non-profit blog mentioned above were true, it would be that these organizations would be exempt from requiring a release from using a photo of someone because they are non-profits. As you can imagine, any one of these organizations may or may not be supported by everyone in the country, so could it really be that they could use photos of anyone they wanted for any reason, without their consent? That's an easy "no." Imagine how upset you would be if a non-profit that advocated a cause you don't support were to use a photo of you in an ad.

This is what federal and state statutes are there for: to prevent this sort of unfettered use of people's likenesses. Nowhere does any statute state whether "money" as anything to do with any of these transactions or companies.

But, don't let this reality jolt make you think that all non-profits have to get releases for all photos they use. And since non-profits are treated identically to for-profits, it may even be more surprising to learn that for-profit companies don't necessarily need releases for all the photos they use in ads either. And this potential lack of a need for a release lies in an infrequently-read subsection (e) of the same California Code 3344, which reads:

The use of a (...) photograph, or likeness in a commercial medium shall not constitute a use for which consent is required (...) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the photograph or likeness was so directly connected with the commercial sponsorship (...) as to constitute a use for which consent is required (...)

In other words, the person has to look like they are somehow advocates or sponsors of the underlying product or service. In the simplest case, just because a website, magazine, newspaper, or newsletter may have ads in it does not suddenly trigger the need for a release from the people who may happen to be in photos on the same page. Just having a photo of someone is not the test -- it's whether there is an implied association (or affiliation) between the person/people in the photo and the "user" (publisher) of the photo, or the advertiser. (Hint: you see ads on the same page as articles in newspapers. That's no different than ads on a web page that happens to have editorial content and photos of people. Readers know the difference between an ad and an article, at least in most mainstream publications.)

Obviously, this is highly subjective, as well as highly-dependent on the given photo and the given use. All of this is entirely (and somewhat arbitrarily) up to the whims and opinions of judges. Not that there's anything wrong with that. But, it's this lack of specificity that allows people's assumptions to lead them astray.

In effect, this new understanding of subsection (e) introduces a brand new view that you probably didn't expect: just because someone is recognizable in a photo and that photo is used in an ad, it does not necessarily trigger the need for a release. Subsection (e) states that the person in the photo must appear to be "directly connected with the sponsorship." If you were to have a close-up photo of a person looking directly into the camera with text over his face saying, "I have AIDS," the implied between the person in the photo and the organization is pretty strong. However, a photo of a local band that happened to be playing at an outdoor event that happened to benefit the non-profit could show up in a newsletter to members with a far less likely need for a release. Is there an implied association? Perhaps, but it's far more benign and less likely to be objectionable to the band members (or they wouldn't have played the gig in the first place).

Between those two endpoints is an infinitely large number of possibilities for how someone might look as to determine whether they are "directly connected" to the published use of the photo, and whether that person would be likely to object.

And it's that analysis that leads us to real-world events and how they often don't reflect academic discussion, or even the laws themselves. This is why most non-profits don't think or care about having releases: most of the time, nothing happens and no one cares. But it's still important to mention, because the law is the law, after all.

In conclusion, despite the fact that this was about non-profits, it turns out that they aren't different than any other organization. What this topic is really about is what is meant by "commercial use." It's not what people think -- that money is made or has changed hands because someone's likeness was used. Privacy and publicity laws are written to address people's rights as to how they are represented, and whom they can be implicitly associated with, regardless of whether money plays a role. If a company violates those rights by publishing an unreleased photo that can imply an association, _then_ it becomes all about money. Theirs.