Releases, consents and permissions are related contractual concepts. They are requested and given primarily to permit the use of rights to intellectual property, authorize the use of materials owned by third parties or avoid invasions of privacy rights. Publishers typically require authors to perform these clearances on forms typically prepared by the publisher. So, for example, photographs of living persons intended for use in trade or advertising (using the language in the New York statute) have to be cleared before publication. The consent in a form that states the extent of the rights granted must be in writing and signed by the party giving it. That means the release should come from the sitter not the photographer.
The failure to obtain a release or consent exposes an author (in the case of photographs of living persons) to liability under privacy statutes. So the question is the risk? In New York and most likely in other jurisdictions, there are exemptions for newsworthiness and works of art for which releases and consents are not required. Decisions from three cases illustrate the rights and the exemptions. In the first case, an unpublished decision from a trial court last year in New York City, Yasin v. Q-Boro Holdings, LL. and Urban Books, 13259/09 (Kings Cty, 4-23-10), Urban Books used a photograph of the plaintiff without first obtaining a release as cover art for a book entitled “Baby Doll.” Urban Books is a romance publisher. New York provides both injunctive and legal remedies for non-consensual commercial use of a person’s name, portrait or picture. Other jurisdictions have comparable Constitutional or statutory provisions. In Yasin the court had no problem with finding that the defendants were using the plaintiff’s picture for “marketing and trade purposes.”
The newsworthiness exception is illustrated in another, also unpublished decision, Dominguez v. Vibe Magazine, 11204/07 (New York Cty. 2008). Here, the plaintiff was photographed at a celebrity party. “Although the statute does not define the terms ‘purposes of trade’ or ‘advertising,’ courts have consistently refused to construe these terms as encompassing publications concerning newsworthy events or matters of public interest. The issue is not whether the plaintiff is a private individual whose non-consensual photograph appears without permission in connection with an article “but rather, whether the photograph in which plaintiff appears bears a reasonable relationship to a newsworthy article and is not a disguised advertisement.” The court concluded that the use of the photograph bore a reasonable relationship to a newsworthy article and dismissed the complaint.
A third example comes from a dissent in Nussenzweig v. Philip-Lorca, 38 A.D. 3d 339 (1st Dept. 2007). The defendant “took a series of candid photographs of passerby in Times Square, from which he chose 17 images to be included in a collection he entitled Heads.” Plaintiff’s “head” was one of the images. “Plaintiff, like all of the other candid subjects, was completely unaware that his image had been captured.” The court dismissed the complaint as barred by the statute of limitations, but in a concurring opinion two justices argued for a different theory for dismissing the complaint, namely that the exhibition and sale of photographs depicting living persons acknowledged as works of art do not violate the privacy statute. Even though the “defendant photographer was at all times motivated by the desire to make a profit … from the sale of a limited edition of the photographic prints …[nevertheless] we conclude that the subject artwork constitutes a matter of general public interest entitled to First Amendment protection.”
In illustrating the point with photographs I do not mean that releases, consents and permissions are limited in any way to any particular expressive material. For a book of interviews, for example, the author should prudently obtain releases from the interviewees. For self publishing authors, releases (even assignment of rights) should be obtained for using cover art. For biographers of contemporary persons rights to expressive material (letters, for example) must be cleared. Small publishing ventures offering ezines should obtain author releases setting forth the grant of rights. And so on.