Personal Photos Copyright Laws
In 1902, Abigail Roberson walked to downtown Rochester New York, where she was surprised and embarrassed to find her picture on posters advertising Franklin Mills Flour. The posters were placed in stores, warehouses and other public buildings--all without her knowledge or consent. Roberson sued Rochester Folding Box Company for $15,000 but lost the case because there was no law regarding the recognition of privacy. The next year, the New York State Legislature passed the first privacy statute.
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Appropriation and the Right to Publicity
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The two basic tenets of legitimate use of another's personal photo---appropriation and the right to publicity---give the subject the right to dictate the use of his photo. It is illegal to use another's name or likeness for commercial purposes without consent. And where there is consent, there is a justifiable right to compensation.
Best Practice
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According to attorney David Amkraut, you can own the copyright of your photos without registration; however, if you want to protect them from unauthorized use, you should register them with the Copyright Office, a federal office of public record for copyright registration and deposit of copyright material, before you publish them. Amkraut also recommends that before using others' photos you obtain permission, verbally or in writing, otherwise "you cannot legally display it on a Website ... copy it, send it around by e-mail or other means, make photos derived from it, sell it, or otherwise exploit it."
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Establishing Consent and Compensation
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The establishment of consent usually comes in the form of a contract or release form. In order for a contract to be legally binding, each party must obtain something of value, and three elements must be met: offer, acceptance and consideration. A subset of the acceptance rule necessitates two requirements: informed consent (the signatory understood the contract) and authority to sign (signature by a minor can render the contract void.)
Social Networking Sites
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According to Social Networking Watch, the self-proclaimed "authority on the business of social networking," social media traffic is on the rise. Many rumors have surfaced claiming these networks allow third-party advertisers to upload and use your photos. A "Debunking Rumors" page on one of the most popular sites recommends creating secure passwords, checking your account settings and reporting any dubious applications to the site's administrator to aid in keeping your information private.
Girls Gone Wild Litigation
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Litigation concerning the "Girls Gone Wild" (GGW) videos/photos provides noteworthy examinations of copyright and the right to publicity. In Lane v. MRA Holdings, LLC, a woman sued GGW claiming that she did not understand that the video in which she participated would be available to the public. GGW requires a signed waiver and proof of age and provides "consideration" in the form of a T-shirt and trucker hat, thus fulfilling the three elements of a legitimate contract. The contract therefore established consent, invalidating any invasion of privacy claim. The plaintiff's image did not appear in any commercial aspect of the work, which under Florida statute, invalidated the appropriations component, giving GGW copyright protection of the video/photos. According to Carolyn Wright, a Florida attorney who specializes in photography issues, it's best to have a signed release for protection against litigation, "but whether it's legally required is determined by each state's law on the right of publicity."
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References
Resources
- Photo Credit black copyright symbol image by Angie Chauvin from Fotolia.com
