Whenever you shoot a photo of a recognizable person, the individual in the photo has a separate set of image rights. Photographers are sometimes surprised to learn that owning the copyright to a photo does not give them all the rights to their work. In many situations, the people depicted in a work also have control over how it is used, and in some countries, these rights may not even let you publish a photo without the subject’s permission.
Here’s a review of image rights in several countries and how they apply to photography.
Image Rights in the United States
Personality rights differ from state-to-state within the United States. Most jurisdictions have a basic right of publicity that is relevant whenever an image is used in a commercial context. Many photographers and photo clients forget that you need a photo subject’s permission (usually in the form of a model release) to use his or her likeness to promote a product or service. Some misuses of personality rights we have encountered in the United States include:
- The use of a portrait in a fake Yelp profile (tip: Don’t steal photos to write fake reviews)
- Using editorial-use-only photos for product testimonials
- Using an image of a woman on product packaging
As a photographer, it’s your responsibility to always get a model release from subjects in photos that could be considered commercial and not to sell any of the photos to a commercial client unless you have one. If you are a photo user, you need to make sure you aren’t using someone’s likeness in a way that endorses your product or service.
Editorial use of photos containing people is generally allowed. It’s perfectly ok to sell a photo of a woman running in the park to a magazine for an article about active lifestyles, for example, without a model release (getting permission from the subject would still be the nice thing to do). It wouldn’t be ok to sell the work to a company intending to promote running shoes, however.
Interestingly, infringers will sometimes claim that they don’t have to pay for using a stolen photo because the photographer never got a model release. Like nearly all infringer excuses, this one doesn’t work either, since personality/image rights and copyright are two distinct legal concepts.
Personality rights in the United Kingdom and Ireland
Image rights do not exist in the United Kingdom and Ireland in the same way as U.S. states (when recognized). With that in mind, individuals do have other rights, such as privacy rights, that affect how a work can be used commercially. There’s also a common law tort of “passing off”, in which individuals whose work has been used to promote a product may be able to seek damages for misrepresentation.
Image Rights Elsewhere in the World
Personality rights vary greatly around the world. Germany and the Netherlands have some of the most restrictive (and complicated) image rights we’re aware of at Pixsy. There are many situations where permission of a photo subject is needed simply to publish a work, though this is rarely enforced. Consent is absolutely required for commercial use of recognizable persons.
Wikipedia has a very comprehensive overview of when consent is needed to take a picture, publish the work and use an image of a person commercially.
Keep in mind that when a photo is published in a foreign jurisdiction, the rules of that jurisdiction will apply to the photo subject. You probably won’t be able to sell a photo of a man taken in the UK for commercial use in the United States, for example. When in doubt, always opt on the safe side, and ask for permission.
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