Forums > General Industry > PhotogLaw 101 - Use of Likeness

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

First in a series on laws affecting photographers and the models they work with.

I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws.  


Use of Likeness - In simple terms, this is a state law under which a model can sue a photographer for stealing the value of their likeness or name. Here's what you would need to prove:

"In Texas, the tort of misappropriation provides protection from the unauthorized appropriation of one's name, image or likeness... It is best understood as a species of the right of publicity or of privacy... To prevail, a plaintiff must prove that

(1) the (photog) misappropriated (stole) the (model's) name or likeness for the value associated with it and not in an incidental manner or for a newsworthy purpose;

(2) the (model) can be identified from the publication; and

(3) the (photog) derived some advantage or benefit."

This is Texas law as quoted by a federal court of appeals - the law in your state or country may be different.

Note the word unauthorized - a model release gives the photog authorization.

Also note the words incidental and newsworthy.

Also note that the model must be identifiable - for example, unless the model has a unique birthmark on her bum, a b&w bodyscape probably wouldn't be identifiable.

Finally, the photog must have gained some advantage or benefit from the use of the likeness.

You could also sue the publication itself if all these elements are present - this is one of the reasons why magazines and contests request a signed model release from photog who submit images.

To sum up, in Texas, if someone uses an image of your face or body, without your permission, to make some money, you could sue them.

Dec 26 12 08:45 am Link

Photographer

Marc Damon

Posts: 6562

Biloxi, Mississippi, US

John Peralta wrote:
First in a series on laws affecting photographers and the models they work with.

I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own.


Use of Likeness - In simple terms, this is a state law under which a model can sue a photographer for stealing the value of their likeness or name. Here's what you would need to prove:

"In Texas, the tort of misappropriation provides protection from the unauthorized appropriation of one's name, image or likeness... It is best understood as a species of the right of publicity or of privacy... To prevail, a plaintiff must prove that

(1) the (photog) misappropriated (stole) the (model's) name or likeness for the value associated with it and not in an incidental manner or for a newsworthy purpose;

(2) the (model) can be identified from the publication; and

(3) the (photog) derived some advantage or benefit."

This is Texas law as quoted by a federal court of appeals - the law in you state may be different.

Note the word unauthorized - a model release gives the photog authorization.

Also note the words incidental and newsworthy.

Also note that the model must be identifiable - for example, unless the model has a unique birthmark on her bum, a b&w bodyscape won't be identifiable.

Finally, the photog must have gained some advantage or benefit from the use of the likeness.

You could also sue the publication itself if all these elements are present - this is one of the reasons why magazines and contests request a signed model release from photog who submit images.

To sum up, in Texas, if someone uses an image of your face or body, without your permission, to make some money, you could sue them.

Since you are not giving legal advice here, which I completely understand, I will simply ask for how Texas generally defines the two phrases quoted below.

"value with regard to a model's image or likeness"
IMO, a celeb like Beyonce (originally from Houston) would certainly command more value than a generally unknown person, from TX, who has participated in only one shoot with a photographer. What constitutes that value and how is it determined?

"some advantage or benefit"
Is merely enhancing/diversifying the photographers portfolio enough or does there need to be some other form of benefit such as increased fame or notoriety for the photographer or perhaps money changing hands?

Dec 26 12 09:14 am Link

Photographer

rp_photo

Posts: 42495

Houston, Texas, US

John Peralta wrote:
I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own.

I've seen charges of "Improper photography" mentioned a few times in Houston and Texas news articles. These typically involve clandestine activities such as hidden cameras, "upskirt", etc. by those who are in no way acting as legitimate photographers.

Is there any likelihood that that this charge could come ever out of a legitimate arranged shoot? I'm thinking some worse-case "buyer's remorse" situation.

Dec 26 12 09:25 am Link

Photographer

Michael McGowan

Posts: 3657

Tucson, Arizona, US

When I lived in Virginia, if a person posed for a photo, it became very difficult (but not impossible) to win a lawsuit. On the other hand, there was the case of somebody who sued ... and won ... because somebody published a photo of her years and years later, and it no longer reflected who she was. She had gone from heavy drinker to teetotaler, and the picture showed her with a liquor bottle.

So, any of these things can be nuanced. And a model release is not an absolute document in some states.

Dec 26 12 09:33 am Link

Photographer

rp_photo

Posts: 42495

Houston, Texas, US

Michael McGowan wrote:
When I lived in Virginia, if a person posed for a photo, it became very difficult (but not impossible) to win a lawsuit. On the other hand, there was the case of somebody who sued ... and won ... because somebody published a photo of her years and years later, and it no longer reflected who she was. She had gone from heavy drinker to teetotaler, and the picture showed her with a liquor bottle.

So, any of these things can be nuanced. And a model release is not an absolute document in some states.

99% of the time it's easier to ask for forgiveness than permission.

Be careful in general, proactively take down older and less-flattering work (either because of you or the model), and apologize profusely when met with the hopefully rare takedown request.

Shoot sufficiently and diversely enough so that no one model makes or breaks you, either for future shoots or portfolio presence.

Dec 26 12 09:39 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

Marc Damon wrote:
Since you are not giving legal advice here, which I completely understand, I will simply ask for how Texas generally defines the two phrases quoted below.

"value with regard to a model's image or likeness"
IMO, a celeb like Beyonce (originally from Houston) would certainly command more value than a generally unknown person, from TX, who has participated in only one shoot with a photographer. What constitutes that value and how is it determined?

"some advantage or benefit"
Is merely enhancing/diversifying the photographers portfolio enough or does there need to be some other form of benefit such as increased fame or notoriety for the photographer or perhaps money changing hands?

Portfolio use would probably be deemed incidental or lacking in advantage or benefit. Your point about Beyonce is well taken. If you use an unauthorized pic of her in your port to boost your credibility, that might be enough. But remember that although there might be a good claim, there may be insufficient to be earned from the suit.

Dec 26 12 09:44 am Link

Photographer

ME_

Posts: 3146

Atlanta, Georgia, US

What does "stole" the subject's likeness mean? Stole how?

Dec 26 12 09:51 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

ME_ wrote:
What does "stole" the subject's likeness mean? Stole how?

Used this instead of the legal term misappropriated. All it means is without permission.

Dec 26 12 09:56 am Link

Photographer

ontherocks

Posts: 22618

Salem, Oregon, US

so if using the photos in your portfolio on model mayhem is considered incidental then a model has no legal grounds (at least in texas since i think this varies somewhat by state?) to ask for the photos to be taken down even if a model release wasn't signed?

that's what i see most commonly on here. a model (or boyfriend/relative) threatening the photographer with a suit unless they take the pictures down from mayhem, Facebook, etc. it's good if we can respond and say they have no legal grounds to ask for that (but we might do it anyway to keep the peace).

John Peralta wrote:
Also note the words incidental and newsworthy.

Dec 26 12 10:04 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

rp_photo wrote:

I've seen charges of "Improper photography" mentioned a few times in Houston and Texas news articles. These typically involve clandestine activities such as hidden cameras, "upskirt", etc. by those who are in no way acting as legitimate photographers.

Is there any likelihood that that this charge could come ever out of a legitimate arranged shoot? I'm thinking some worse-case "buyer's remorse" situation.

Possible but very unlikely any charges would be filed.  Both parties have a proven history of  voluntary shoots, and you will have emails,  voice messages, etc, to show she agreed to the shoot.

Use a release and have an assistant present if your really worried - a crazy model could  just as easily file a false rape charge.

Dec 26 12 10:06 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

twoharts wrote:
so if using the photos in your portfolio on model mayhem is considered incidental then a model has no legal grounds (at least in texas since i think this varies somewhat by state?) to ask for the photos to be taken down even if a model release wasn't signed?

that's what i see most commonly on here. a model (or boyfriend/relative) threatening the photographer with a suit unless they take the pictures down from mayhem, Facebook, etc. it's good if we can respond and say they have no legal grounds to ask for that (but we might do it anyway to keep the peace).


You own the copyright and can use the pics in any lawful manner  (unless you gave away your copright in writing) - don't confuse the two issues.

Dec 26 12 10:09 am Link

Photographer

rp_photo

Posts: 42495

Houston, Texas, US

John Peralta wrote:
a crazy model could  just as easily file a false rape charge.

Good point. I have worked with app. 450 models since 2005, and only 2 have risen to the level I would call "crazies", with neither incident involving dire false accusations.

The vast majority of problem models never make it to the shoot, especially after the first "crazy" taught me to always heed hints that models don't want to shoot in the event they are afraid to cancel or flake outright. You may feel slighted, but the last thing you want is to shoot a model who doesn't want to, as this is where most problems arise.

I also believe that had I not taken up photography, I would have been at higher risk of getting in trouble some other way without this creative self esteem-building outlet. This is, in fact, the "standard answer" I give to those who ask if I am concerned about getting in trouble via photography.

Dec 26 12 10:20 am Link

Photographer

MC Photo

Posts: 4144

New York, New York, US

John Peralta wrote:
Possible but very unlikely any charges would be filed.  Both parties have a proven history of  voluntary shoots, and you will have emails,  voice messages, etc, to show she agreed to the shoot.

As a licensed lawyer you should know not to use "charges" in a civil context, only in a criminal context

Dec 26 12 08:18 pm Link

Photographer

DarrylPascoePhotography

Posts: 478

Toronto, Ontario, Canada

MC Photo wrote:
As a licensed lawyer you should know not to use "charges" in a civil context, only in a criminal context

Last time I checked "rape" is criminal.

Dec 26 12 08:58 pm Link

Photographer

MC Photo

Posts: 4144

New York, New York, US

DarrylPascoePhotography wrote:

Last time I checked "rape" is criminal.

Last time I checked it's an offensive, misogynistic, repulsive, despicable thing to minimize rape to the level of "oops, I forgot to get a release signed." I haven't looked at your port, but I'm assuming you have no interest in shooting female models after a comment like that.

What's next, "Of course I can shoot the next Vogue cover, I've got an iPhone with Instagram!"

Dec 26 12 11:37 pm Link

Photographer

DarrylPascoePhotography

Posts: 478

Toronto, Ontario, Canada

MC Photo wrote:
Last time I checked it's an offensive, misogynistic, repulsive, despicable thing to minimize rape to the level of "oops, I forgot to get a release signed." I haven't looked at your port, but I'm assuming you have no interest in shooting female models after a comment like that.

What's next, "Of course I can shoot the next Vogue cover, I've got an iPhone with Instagram!"

Where in the hell do you get me commenting on the fact that you said rape was civil and correcting you that it is criminal is somehow minimizing it to "oops I forgot to get a release signed? " would love to hear the bs response you have for that question being as your jumping to that insane conclusion from what I don't know.

Dec 26 12 11:58 pm Link

Photographer

Star

Posts: 17958

Los Angeles, California, US

what tort is there that utilizes the law we are speaking about in a manner that would be of interest to the majority of the members of MM?

Dec 27 12 12:00 am Link

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Photographer

studio36uk

Posts: 21903

Tavai, Sigave, Wallis and Futuna

MC Photo wrote:

As a licensed lawyer you should know not to use "charges" in a civil context, only in a criminal context

The post he was responding to mentioned "improper photography." In Texas that is a criminal offence. The reference to charges in that context, therefore, was quite correct.

Studio36

Dec 27 12 01:46 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

MC Photo wrote:

As a licensed lawyer you should know not to use "charges" in a civil context, only in a criminal context

There are several states where taking a photo or video without the subject's knowledge and for sexual gratification is a crime.

Dec 27 12 04:42 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

Star wrote:
what tort is there that utilizes the law we are speaking about in a manner that would be of interest to the majority of the members of MM?

This tort will not often be an issue to most MM photogs/models. It's the first in a series and part of what I'm trying to do is show the difference between the various legal concepts.

Dec 27 12 04:50 am Link

Photographer

MC Photo

Posts: 4144

New York, New York, US

DarrylPascoePhotography wrote:

Where in the hell do you get me commenting on the fact that you said rape was civil and correcting you that it is criminal is somehow minimizing it to "oops I forgot to get a release signed? " would love to hear the bs response you have for that question being as your jumping to that insane conclusion from what I don't know.

I didn't say rape was civil. We were talking about using photos without a release.

Dec 27 12 07:59 am Link

Photographer

MC Photo

Posts: 4144

New York, New York, US

studio36uk wrote:

The post he was responding to mentioned "improper photography." In Texas that is a criminal offence. The reference to charges in that context, therefore, was quite correct.

Studio36

Ok. I'll take your word for that. It doesn't seem worth it to reread the entire thread to figure out if/what I missed.

Dec 27 12 08:01 am Link

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Photographer

GPS Studio Services

Posts: 36367

San Francisco, California, US

rp_photo wrote:
I've seen charges of "Improper photography" mentioned a few times in Houston and Texas news articles. These typically involve clandestine activities such as hidden cameras, "upskirt", etc. by those who are in no way acting as legitimate photographers.

Is there any likelihood that that this charge could come ever out of a legitimate arranged shoot? I'm thinking some worse-case "buyer's remorse" situation.

John Peralta wrote:
Possible but very unlikely any charges would be filed.

MC Photo wrote:
As a licensed lawyer you should know not to use "charges" in a civil context, only in a criminal context

John Peralta wrote:
There are several states where taking a photo or video without the subject's knowledge and for sexual gratification is a crime.

You mean like the time where they arrested the guy because he was accused of taking sexually gratifying photos of small kids in the park.  When they reviewed the images in his camera, after he was arrested and outed on national TV, they discovered that he was actually taking some very cute photos of balloons on a table.

I have no criticism of your post.  And to be clear, he was arrested as "suspicion" and no charges were filed.  I do think that the statutes are well intended, but photography sometimes creates unnecessary hysteria.

Dec 27 12 08:18 am Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

ei Total Productions wrote:

MC Photo wrote:
As a licensed lawyer you should know not to use "charges" in a civil context, only in a criminal context

I have no criticism of your post, I do think that the statutes are well intended, but photography sometimes creates unnecessary hysteria.

I agree 100%.

Dec 27 12 08:25 am Link

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Photographer

studio36uk

Posts: 21903

Tavai, Sigave, Wallis and Futuna

DarrylPascoePhotography wrote:
Last time I checked "rape" is criminal.

Though rape is criminal in the criminal statute sense it may also be taken to be a tort, a civil wrong, though there is no specific tort of "rape". The primary tort for with relief is to likely be sought would fall within the spectrum of torts broadly described as "trespass against the person" and that, in turn, within that general heading, incorporate torts of assault, battery, and false imprisonment. Clearly some elements of each of those would be associated with a rape or a rape like act [e.g. indecent liberties; indecent assault, ect]. Even where there was no physical contact, such as in voyeurism in the case of "improper photography" in Texas, there may still be redress in tort. Within the spectrum of "trespass against the person", in the tort arena, would also be included harassment.

Though a [civil] defendant, if even criminally charged which is not a certainty in every instance, might be found not guilty [as opposed to innocent] in a criminal trial, the differences in the civil procedure standard of proof, based on a preponderance of the evidence as opposed to the criminal standard of beyond a reasonable doubt, could still provide an alternative means of legal process especially to recover damages accounting for some physical and / or emotional trauma suffered by the plaintiff.

That something is a criminal offence does not automatically exclude it from being, also, "some form" of tort triable in the civil courts. The expression "some form" is used here because not all criminal or civil wrongs would constitute torts, whereas others most certainly would.

It may or may not be possible in the US system to apply the comments above, or to apply them comprehensively, though I believe that some application of them could be realised.

Studio36

Dec 27 12 08:27 am Link

Photographer

Dean Johnson Photo

Posts: 58123

Minneapolis, Minnesota, US

Moderator Warning!

MC Photo wrote:

Last time I checked it's an offensive, misogynistic, repulsive, despicable thing to minimize rape to the level of "oops, I forgot to get a release signed." I haven't looked at your port, but I'm assuming you have no interest in shooting female models after a comment like that.

What's next, "Of course I can shoot the next Vogue cover, I've got an iPhone with Instagram!"

I'm not sure why you're attacking him like this, but please stop. And please don't put words in peoples' mouth.

Dec 27 12 02:54 pm Link

Photographer

Art of the nude

Posts: 11892

Olivet, Michigan, US

twoharts wrote:
so if using the photos in your portfolio on model mayhem is considered incidental then a model has no legal grounds (at least in texas since i think this varies somewhat by state?) to ask for the photos to be taken down even if a model release wasn't signed?

that's what i see most commonly on here. a model (or boyfriend/relative) threatening the photographer with a suit unless they take the pictures down from mayhem, Facebook, etc. it's good if we can respond and say they have no legal grounds to ask for that (but we might do it anyway to keep the peace).

John Peralta wrote:
You own the copyright and can use the pics in any lawful manner  (unless you gave away your copright in writing) - don't confuse the two issues.

But, clarifying what is, and is not a "lawful manner" is kinda the point.

I certainly HOPE to derive benefit from my portfolio.  But then, I get model releases.

Dec 27 12 03:26 pm Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

Art of the nude wrote:

twoharts wrote:
so if using the photos in your portfolio on model mayhem is considered incidental then a model has no legal grounds (at least in texas since i think this varies somewhat by state?) to ask for the photos to be taken down even if a model release wasn't signed?

that's what i see most commonly on here. a model (or boyfriend/relative) threatening the photographer with a suit unless they take the pictures down from mayhem, Facebook, etc. it's good if we can respond and say they have no legal grounds to ask for that (but we might do it anyway to keep the peace).

But, clarifying what is, and is not a "lawful manner" is kinda the point.

I certainly HOPE to derive benefit from my portfolio.  But then, I get model releases.

I agree. Best advice for all: photogs should get releases so they can profit from the model's likeness and satisfy contest/publishers' requirements, and models should get a use agreement.

Dec 27 12 03:36 pm Link

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Photographer

studio36uk

Posts: 21903

Tavai, Sigave, Wallis and Futuna

twoharts wrote:
so if using the photos in your portfolio on model mayhem is considered incidental then a model has no legal grounds (at least in texas since i think this varies somewhat by state?) to ask for the photos to be taken down even if a model release wasn't signed?

that's what i see most commonly on here. a model (or boyfriend/relative) threatening the photographer with a suit unless they take the pictures down from mayhem, Facebook, etc. it's good if we can respond and say they have no legal grounds to ask for that (but we might do it anyway to keep the peace).

John Peralta wrote:
You own the copyright and can use the pics in any lawful manner  (unless you gave away your copright in writing) - don't confuse the two issues.

Art of the nude wrote:
But, clarifying what is, and is not a "lawful manner" is kinda the point.

I certainly HOPE to derive benefit from my portfolio.  But then, I get model releases.

Without a release, one might look to any rights available, at least in the US, under the 1st Amendment. Without exception the various state statutes concerned with an individual's closely held rights to their image, personality, privacy, and publicity pretty well confine themselves to regulating only certain unauthorised uses, [those for which consent to the regulated kinds of use has not been obtained,] of someone's image and other personality factors [name, signature, ect] to three broad categories: use in "advertising"; use "in the course of trade"; and "commercial use" [aka commercial appropriation] generally.

It is important to also note that the meaning of the phrase "commercial use" is not the same as the meaning of "commercialisation." Thus, mere display, distribution or sale of a work, even for profit, is not necessarily a "commercial use" of that work.

The OP may wish to comment on my assessment, as to this state of play, and I invite him to do so.

Studio36

Dec 27 12 03:54 pm Link

Model

Marthin

Posts: 18

Indianapolis, Indiana, US

This is a bit confusing when mix with Federal Copyright laws.
My questions is when a photographer has a session with a model and retains his/hers copyrights, can they misappropiate the image (photo) to which they own the copyright.
Misappropiation seems to indicates lack of knowledge/approval of the image being taken on the part of the model.

I know this varies from state to state, but how does the federal laws effect the mix?

I know of a situation where the model sign a release to use his image (to promote a organization) to a third party, but no one consulted the photographer who was able to have the image (photo) removed under copyright protection.

Dec 27 12 04:10 pm Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

Marthin wrote:
This is a bit confusing when mix with Federal Copyright laws.
My questions is when a photographer has a session with a model and retains his/hers copyrights, can they misappropiate the image (photo) to which they own the copyright.
Misappropiation seems to indicates lack of knowledge/approval of the image being taken on the part of the model.

I know this varies from state to state, but how does the federal laws effect the mix?

I know of a situation where the model sign a release to use his image (to promote a organization) to a third party, but no one consulted the photographer who was able to have the image (photo) removed under copyright protection.

The best way to think about copyright in this area is that it applies to the artist's creation.The  images I create with my camera belong to me. Just the same as a painting belongs to the artist and the novel belongs to the author. No one can use my creations without my permission - regardless of whether they make money from them. That is why models should get use agreements from the photographer.

Misappropriation is when some uses another's likeness for their own benefit without permission. If I take a picture of Michael Jordan and use it without his permission to sell basketball jerseys, Mr. Jordan can sue me. That's one of the reasons why photographers should get releases from models.

Dec 27 12 05:35 pm Link

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Photographer

studio36uk

Posts: 21903

Tavai, Sigave, Wallis and Futuna

John Peralta wrote:
The best way to think about copyright in this area is that it applies to the artist's creation.The  images I create with my camera belong to me. Just the same as a painting belongs to the artist and the novel belongs to the author. No one can use my creations without my permission - regardless of whether they make money from them. That is why models should get use agreements from the photographer.

Misappropriation is when some uses another's likeness for their own benefit without permission. If I take a picture of Michael Jordan and use it without his permission to sell basketball jerseys, Mr. Jordan can sue me. That's one of the reasons why photographers should get releases from models.

Though the bolded passage goes directly to commercial use, is it not also true that not every un-released use would rise to the level of misappropriation? e.g. an editorial use

Studio36

Dec 27 12 05:57 pm Link

Photographer

Faces2Die4 Photography

Posts: 426

Houston, Texas, US

studio36uk wrote:

Though the bolded passage goes directly to commercial use, is it not also true that not every un-released use would rise to the level of misappropriation? e.g. an editorial use

Studio36

True, incidental or newsworthy uses are excluded.

Dec 27 12 06:02 pm Link