Photographs

[DAKOTAGREEN]

I have a love of dancing. So I had the idea of combining a sales website with pictures (with comments) on the same page as items for sale. Under what conditions do I need a release form from the people in the pictures? Would a statement at the top of the website "None of the people pictured here endorse the products sold" do?
Roy in Ohio

 

[T-DESIGNER]

I am not an attorney. We are assuming these are pictures
you have taken yourself; therefore, you own any current/future
copyrights to those pictures. If you do not have copyright
ownership, you need permission from the owner, plus you
may need to determine if the copyright owner has signed
Unlimited Use Releases from the persons in the pictures.

An attorney, who has experience/knowledge, may refute/expand
on the following quote taken from Chapter 12 - Releases, in the
book "Getting Permission: How to License & Clear Copyrighted
Materials Online & Off" by Attorney Richard Stim, which is
available for purchase at http://www.nolo.com .

"Although the right of publicity is commonly associated with
celebrities, every person, regardless of how famous, has a
right to prevent unauthorized use of their name or image to
sell products. The right of publicity extends beyond the
commercial use of a person's name or image to protect the
person from any implication that they individually endorse
a product."

I am not sure "None of the people pictured here endorse
the products sold" eliminates "any implication" that they
individually endorse a product. An attorney on this forum
may be unwilling to give you an unqualified "yes" or "no"
to your question.

What pictures are you planning to use; i.e., do they contain
pictures of well known individuals, or do they simply contain
dance poses or _____ you like? If you know all of the
individuals, you might contact a professional photographer
for further information and/or ask for a sample "Limited
Personal Release Agreement" form, where an example can
also be found in the above book. If you do not know all
of the individuals, you can hire a professional photographer,
and/or take similar photographs, provided the original
pictures you are wanting to simulate are not too artistic in
nature; i.e., simple photographs rather than photographs
that appear more like unique artwork done with photo
editing software, etc.

 

[T-DESIGNER]

Here is another quote from "Getting Permission: How to License
& Clear Copyrighted Materials Online & Off" by Attorney Richard
Stim:

"A disclaimer by itself will never shield a business from liability.
In many cases, disclaimers have been found to add to rather
than reduce confusion in the minds of customers or readers
as to whether or not a celebrity is endorsing a product or
service. Moreover, a disclaimer is an acknowledgment that
the business admits the potential for confusion, a fact that
may be used against the business in a lawsuit.

To have any legal effect, a disclaimer must be in close
promimity to the person's image or name and as prominent
as the name or image. It must also disclaim any sponsorship,
endorsement, or association with the product or service
involved. Because of the legally tenuous value of disclaimers,
it is generally not wise to rely on them for protection."

 

[counsel]

In addition to copyright issues, several states like California and New York have strong PUBLICITY laws. If any of the people in the pictures reside in, say, California, they could sue you for violation of their right of publicity. Additionally, they might say you have violated their right of PRIVACY if they don't want the pictures made public.

I would recommend that you obtain releases from the subjects. And if you are not the photographer, you will also need copyright licenses.

 

[T-DESIGNER]

To Member Counsel:

1. Have you found copyright owners to normally have obtained
"Unlimited Usage Releases" from the subjects?

2. If a copyright owner possesses an "Unlimited Usage
Release", is it necessary for the licensee to obtain permission
from the subjects in the photograph?

3. Can the creator/owner of a photograph license it without
without permission from the subjects in the photograph? e.g.,
If I take a photograph and personally present it to a publisher
for licensing, am I responsible if the publisher uses the
photograph, but the publisher fails to obtain permission from
the subjects?