Can I use photographs taken in a public place in a free newsletter without written permission of the subject person or owner of the subject property?

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Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

Discussion

This analysis is a very fact specific inquiry. Use of a photograph without permission of the subject person or the owner of the subject property, depending upon the specific facts, could result in the following claims (among others) against the person who takes the photograph as well as the person who uses the photograph: (1) violation of the right of publicity; (2) violation of the right of privacy; (3) defamation; and (4) copyright infringement.

Right of Publicity

Ohio has codified the right of publicity in an individual’s persona in R.C. §2741.01 et seq. Pursuant to that statute, a person is prohibited from using any aspect of an individual’s persona for a commercial purpose: (1) during the individual’s lifetime; or (2) for a period of sixty years after the date of the individual’s death. (There are special rules that apply to members of the Ohio National Guard or the armed forces of the United States, including criminal penalties. These are not discussed here). A person may use an individual’s persona for a commercial purpose during the individual’s lifetime if the person first obtains written consent to use the individual’s persona from a person set forth in the Revised Code (basically, persons having a legal interest in the individual’s persona – note that persona is freely transferable or licensable).

The term “persona” is very broadly defined to mean “an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.” The term “commercial purpose” means the use of or reference to an aspect of an individual’s persona in any of the following manners: (1) on or in connection with a place, product, merchandise, goods, services, or other commercial activities; (2) for advertising or soliciting the purchase of products, merchandise, goods, services, or other commercial activities; (3) for the purpose of promoting travel to a place; (4) for purpose of fundraising.

Consent is generally not required in the following instances: (1) in connection with any news, public affairs, sports broadcast or account; and (2) in connection with any political campaign and in compliance with Title XXXV of the Revised Code.

The following activities are excepted from the applicability of the statute:  (1) a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement; (2) material that has political or newsworthy value; (3) original works of fine art; (4) use of the individual’s name to truthfully identify the individual as an author, contributor, or performer of a work; (5) use in connection with the broadcast or reporting of an event or topic of general or public interest; (6) use solely in the individual’s role as a member of the public if the individual is not named or otherwise singled out as an individual; (7) use by an institution of higher education under specified instances; (8) use protected by the First Amendment to the U.S. Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

Remedies available to the plaintiff include, actual damages; statutory damages of at least $2500 and not more than $10,000 as determined by the jury; punitive or exemplary damages; seizure of profits; reasonable attorney’s fees, court costs and expenses of the civil action; treble damages; injunctive relief; impoundment and destruction of offending items. These remedies are in addition to any other remedies provided by state or federal statute or common law.

Right to Privacy

Ohio recognizes the following invasion of privacy claims:

(1) the unwarranted appropriation or exploitation of one’s personality – one who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person;

(2) the publicizing of one’s private affairs with which the public has no legitimate concern – one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter is of a kind that: (a) would be highly offensive to a reasonable person; and (b) is not of legitimate concern to the public;

(3) misappropriation for an unpermitted use – one who appropriates to his own use or benefit the name or likeness of another is subject to the liability to the other for invasion of privacy.

(4) false light – under the false light theory, it is a tort to give “publicity to a matter concerning another that places the other before the public in a false light … if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

Defamation

In Ohio, defamation is defined as a false statement published by a defendant acting with the required degree of fault and that injures someone’s reputation or exposes him or her to public ridicule or contempt or shame or disgrace.

Copyright

In the U.S., copyright protection arises automatically when an “original work of authorship” is “fixed in a tangible medium of expression.” In certain circumstances, sculptures, statues, houses, paintings, toys, buildings etc may be protectable by copyright.

Some Tips re Use of Photographs

1.    When in doubt, check with the a competent attorney before using the photograph in question. If you the source of the photograph is not an employee acting within the scope of employment, it is probably copyright infringement if used without permission.

2.    Generally, photographs used in a public place do not need consent as long as you are accurately reporting an event of public or general interest.

3.    Photographs taken in a private place require consent of the subject because of a “reasonable expectation of privacy.”

4.    Avoid any photographs (even if legally obtained in a public place) that unfairly demean or ridicule the subject or that unreasonably intrude into the subject’s private or family life.

5.    It is ok to take and use of a picture of a person, especially as part of a larger crowd. But it may be a good idea to ask for permission if the person will be the main subject of the photo.

6.    Picture of an anonymous street performer or a place where photography is expected is also ok.

7.    Pictures at events open to the public are also generally ok. E.g. basketball games.

8.    Make sure captions and titles to the photographs are truthful and not defamatory or derogatory. If in doubt, anonymize the face i.e. pixellate or crop out the face or take a picture in a way that the person is not personally identifiable.

9.    When in doubt, secure a simple written release from the subject. This is true especially when it involves children. Procuring written permission for the use from the parent will help.

admin @ October 6, 2009