PHOTOGRAPHS: WHAT YOU CAN PUBLISH

Legal Rights of Photographers
Version 2.01 — May 2009
By Andrew Kantor • andrew@kantor.com

What you can’t publish
Let’s get the easy stuff out of the way: When it comes to non-human subjects, the only things that you
cannot publish are copyrighted images (more on that in a moment) and potentially images that give
away a secret (in which case you would have been someplace inaccessible to the public to get the shot —
in the vault holding Coca-Cola’s secret formula, or on a military base) .
When it comes to people, though, there are a few more rules. Breaking one (or more) isn’t against
the law, but you could lose a civil suit for invasion of privacy or (in one case) libel.
In fact, publication of photos is all about three parts of privacy law — private facts, false light, and
misappropriation. They tell you whether or not a photo can be published without opening yourself to a
lawsuit — and this is important — regardless of how the photo was obtained.
In other words, even if a photographer violates a subject’s right to privacy, publishing the photos is not
illegal.
From the Photographers’ Guide to Privacy:
Even if a news organization arguably violates a subject’s right to privacy, the subject’s remedy
usually will not include the ability to bar the publication of the picture. (See CBS, Inc. v. Davis,
114 S.Ct. 912.)
Here are the questions to ask if you want to know whether it’s all right to publish a photograph of
someone.
Did the subject of the photo have an expectation of privacy? It doesn’t matter whether she was
on public or private property; was she making a reasonable effort to avoid being seen?
If not, the picture is probably all right to publish — meaning your risk of losing an invasion or privacy
lawsuit is slim. But if you need to take any kind of extraordinary means to get the shot — the long lens
mentioned earlier, or a hidden camera, for example — forget it.
But what if the person does have an expectation of privacy, whether she’s in her bedroom or he’s sitting
on a park bench huddled over a medicine bottle? Then there are some more questions to ask.
Is the picture embarrassing to a typical person? Does it reveal private and non-newsworthy
information that a reasonable person wouldn’t want publicly known? Sneaking into your ex-girlfriend’s
apartment and getting a shot of her in the bath — that’s a no-go. Ditto for a shot of someone, say, taking
AIDS medication.
The definition of private information is fairly specific.
From the American Law Institute:
One who gives publicity to a matter concerning the private life of another is subject to liability
to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
—Restatement (Second) of Torts, § 652D
Does it put the person in a false light? That is, is it published in such a way — perhaps with a
particular caption or in a particular collection — that it implies something untrue about the person? A
Web page of “My Favorite Drug Addicts” that included a shot of your high school teacher taking an
aspirin in the men’s room could be considered libelous.
Legal Rights of Photographers v. 2.01 4 of 8 Andrew Kantor
www.kantor.com/legalrights May 2009
Context is (almost) everything. From the Photographers’ Guide to Privacy:
A photograph or videotape by itself will rarely place a subject in a false light. Rather, the
accompanying text, caption, or voice-over could be misleading and portray the person in a
false context. However, an accurate depiction of a person in a publication the person finds
offensive does not, in itself, state a false light claim.
If a photo doesn’t make someone look bad or embarrass him, chances are it’s legal to publish. But
there’s still one more thing to consider before publication.
Misappropriation
Everyone has the right to the commercial use of his or her image. That means you can’t sell a picture of,
say, Eli Manning without his permission.
Per the American Law Institute:
One who appropriates to his own use or benefit the name or likeness of another is subject to
liability to the other for invasion of privacy.
—Restatement (Second) of Torts, § 652C

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