Who Can Use My Image?

For my photographer and model friends:

I had to draft a “model release” for work the other day, and it made me think of this funny (and sad) story that I heard in law school. A model sued her photographer for breach of contract after he sold her image to a pharmaceutical company that used the image in a genital herpes ad. I guess it wasn’t so funny for her when her friends and family saw the ad, and she had to explain that she didn’t have herpes to everyone she knew…

The unfortunate thing for her was that she had signed a release agreement that was very broad, and she ended up losing her breach of contract claim after a very expensive lawsuit.

The irony is that she probably would have been better off signing no contract at all.

In Florida (and in all other states in some form or another), everyone possesses a property right in the commercial use of their own image. It is sometimes called a Right of Publicity or the Right of Privacy. Florida, in particular, has recognized this right in a statute.

Under the FL St. 540.08(1), it states:

“No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without … express written or oral consent.”

The use must be for “commercial purposes”. In other words, the photographer or publisher must derive some type of benefit from using the photograph and not merely use the image for some expressive purpose. There are also a few exceptions for news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising when the use is incidental. These exceptions can be complicated and should be avoided if possible through a release agreement.

A lot of photographers ask me if a model could have some type of copyright in the images that they take, but the answer is no. Generally speaking, only the photographer will retain a copyright in the image when the subject of the image is another person.

It’s important to note that copyrights and publicity rights are two different animals. That’s why photographers should have a release agreement ready for the model to sign, and models should never sign a release agreement unless they understand completely what it says and means.

As an attorney drafting a release for a photographer, I would try to make it as broad as possible, so that the photographer could sell the image to a stock photo company if they want or whatever other use they might come up with. On the other hand, if I was working for the model, I would want to limit the use as much as possible, so that my client wouldn’t be surprised by any STD ads or other embarrassing uses of the photo later on without her permission.

There are numerous resources on the internet where you can find “form” or example contracts. But I believe it’s always better to contact a real attorney. Part of the importance of this is because Florida publicity rights are unique from other states, and depending on where you are working you might be subject to different issues. Something to think about next time you are striking a pose or taking a few pictures.

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