By Helen Sedwick (@HelenSedwick)
Suppose you find the perfect image for your book cover on the internet—a dark-eyed woman who evokes mystery and romance. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!
But wait. Do you have a release from the dark-eyed woman? Do you need one?
Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later you capture that same author sloppy-faced and drunk at a large party. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?
Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake. But you don’t want to walk around with blank releases in your pockets. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?
Using Images with Identifiable People
The rules about using images with recognizable people come down to two considerations:
- whether the person in the photo had a reasonable expectation of privacy, and
- how the image is being used.
Before you use the photo, ask yourself the following questions:
Was the photo taken at a public setting?
Generally, if you take a photo of someone in a public setting, you do not need permission to post or publish the photo, even if the image is unflattering or embarrassing. People do not have a reasonable expectation of privacy for anything they do in public, so click away. You may also assume anyone who poses (or photo-bombs) for the camera in a public place has consented to you taking and using his or her image.
The same question applies to the dark-eyed woman in the Creative Commons image. Was the photo taken in a public place? Could she have had a reasonable expectation of privacy? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.
Regarding the famous author, you may post the images of the famous author sober at the podium and drunk at the party. The punch in the restroom is less certain. You need to ask yourself whether the author had a reasonable expectation of privacy. Was it a public restroom at a convention center or in a private bathroom at the host’s home? Was the author too drunk to understand his actions were in plain view? There is no right answer here; only factors to consider, including non-legal factors, such as your reputation in the writing community.
The exception to the general rule about public venues applies to performances or meetings where you are informed taking photographs is prohibited. In those situations you make an implied promise to honor the no-photo request as a condition to viewing the performance.
And you cannot use the images for commercial or promotional purposes without permission, even if they are taken in public settings, are available under a Creative Commons license, or are in the public domain. That includes book covers. More on that below.
Was the photo taken in a private setting?
If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any photo showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.
There is an exception if the image is newsworthy or addresses a matter of public interest (something decided by a court). In those cases, you may be able to post and publish the photo. Courts balance First Amendment issues against the rights of privacy. However, I would not do so without going over the specifics with an experienced attorney.
Obviously, don’t climb fences, peer through windows, hack computers or phones, or stalk people to get their photos. Courts are particularly punitive about intrusive measures, particularly involving private individuals.
And never venture into Revenge Porn; a jilted lover posting nude images of his (yes, it’s almost always his) former partner without permission. In some states and countries, Revenge Porn is a crime.
Is your use commercial?
Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.
The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?
To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.
As for the dark-eyed woman? Contact the original photographer and ask whether a release was obtained or is possible. If you use her on your book cover without a release, it could cost you plenty.
Will your use imply any advocacy or endorsement?
Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.
Does your use of the image create a false impression? Consider the context in which you are using the image. If you are writing a post about violent street gangs on a particular street and use an image of a young man walking down that street, you could be implying the young man is part of a gang. Even if you do not say the young man is a gang member, you could be defaming him by portraying him in a “false light.”
Similarly, don’t insert yourself into photos. Recently, an attorney had her license suspended for pasting herself into dozens of celebrity photos as part of promoting her entertainment law practice. What was she thinking?
How high is the M.E. factor?
As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.
What about stock images?
If you license an image from one of the large stock image companies such as IStockPhoto.com, Dreamstime.com, or Getty Images, then they generally guarantee they have obtained all necessary releases, but only if you are paying for a “royalty-free” license. An “editorial license” is more limited and does not permit commercial use.
Bottom line: Photographs taken in public settings are almost always fair game. You may post and publish them for any purposes other than commercial or promotional or in any way that implies a connection or endorsement. For all other uses, getting permission is recommended. Here’s a sample Release you are free to use.
I hereby release and grant to ______________________ (your name) (Photographer), and his or her assigns, licensees, and legal representatives, the irrevocable right to use any photographs of me taken by the Photographer, in all forms and media, whether now existing or not yet created, and in all manners, including composite or distorted representations, for advertising, trade, promotional, political, charitable, education, or any other lawful purposes. I hereby waive any right to inspect or approve the finished versions, including written copy that may be created in connection therewith. I have read this RELEASE AND CONSENT and am fully familiar with its contents.
Signed___________________________________________
Contact information ___________________________________
Date ___________, 20____
(If applicable) I am the parent or guardian of the minor named above and have the legal authority to execute the above release. I approve the foregoing and waive any rights in the premises.
Signed___________________________________________
Contact information ___________________________________
Date ___________, 20____
About the Author
Writer and lawyer Helen Sedwick has thirty years of experience representing businesses and entrepreneurs as diverse as wineries, graphic designers, green toy makers, software engineers, investors, restaurateurs, and writers. Her newest release Self-Publisher’s Legal Handbook: The Step-by-Step Guide to the Legal Issues of Self-Publishing is assisting indie author in navigating the legal minefield of self-publishing and blogging. Her historical novel Coyote Winds earned five-star reviews from ForeWord Reviews and Compulsion Reads and is an IndieBRAG Medallion Honoree. For more information about protecting your rights and your wallet, email her at Helen@helensedwick.com or visit http://helensedwick.com/.
Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.
Readers, My apologies for a missing word. The following paragraph was missing the word AGAINST, a key point.
“The same question applies to the dark-eyed woman in the Creative Commons image. Was the photo taken in a public place? Could she have had a reasonable expectation of privacy? Since it is often impossible to know, I recommend AGAINST using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.”
All fixed now. Thanks.
Helen: What a stupendous post. You are a gift to Indie authors!
Good article. You didn’t mention the use of children’s images on websites like Google Plus, Facebook, Twitter, etc. Children don’t have the ability to give or withhold permission. What happens if someone other than a parent uses their image? And what happens if someone posts a picture of an adult on one of the above websites, and that adult tells them to remove it?
Candace, Yes, the use of images of children raise additional issues. Certainly, any release to use a child’s image must be signed by a parent. If the parents are not married, it’s wise to obtain a release signed by both parents. Even with parental consent, you should not post an identifiable image of a child who has been the victim or perpetrator of a crime. And if a child under 13 wants to post his or her image (or other personal information) on your site, you need to comply with COPPA (Children’s Online Privacy Protection Act). It’s enough to make your head spin. The safest approach is to ALWAYS obtain parental consent before using an image of an identifiable child.
Candace, Of course, you should still consider using an image of a child if it is available from a stock image company under a royalty-free license. Each stock image company has its own rules, so be sure to check the terms of their license or give the company a call to make sure your intended use is permitted.
Hi Helen, thanks for the very useful post. My question is related but not covered in your piece and wondering if you could offer a point of view. Say, I was publishing a nonfiction book to do with marketing. Can I use hypothetically, a picture of the Kardashians? Can i reference them in a (non damaging) metaphor? Ie. As a ‘brand’. I make several references to brands (eg. dove, coca-cola) and people (Kardashians) to illustrate marketing theory and intend to use images/logos of both brands and people but wasn’t sure if I had to get approval each time. Thanks
Josh, An excellent question. What you are describing is called “fair use,” which means the use of copyrighted work for the purposes of commentary, educations, news, parody, or for a transformative use. To the extent you are using copyrighted work, such as an image, for purposes of discussion and commentary about that image or its contents, you should be fine. I would not, however, use such an image on your book cover since that gets too close to using it for marketing purposes and not discussion. There is a similar concept for trademarks.
That being said, some trademark and copyright owners send out intimidating cease-and-desist letters, or send out DMCA take-down notices, even when a use is clearly fair use. It’s wrong, but it happens.
This is unlikely, but if it happens to you, please contact me through my website and we’ll explore this further.
Ms. Sedwick,
I am writing a geography curriculum for children. Currently, all of the maps and cartoon characters I use are in the public domain or say that commercial use is okay. However, eventually, I will need a lot of pictures from other parts of the world to show children what grocery shopping is like in another country or what school looks like in a different country. Due to the terms of use on some platforms and paying for that many stock photos is not economical for me, I plan on asking friends who live in other countries to take pictures for me. I will encourage them to leave people out of the photos. However, when in public places, as your article mentions, is it OK for me to use the photos if there are some people. The crux of my issue is that I don’t know if my book is considered commercial. I thought it was commercial because I’m selling it and I will make some money, but it is not promotional or advertising material so I’m not sure if that makes it editorial. Often the cover of the book is promotional, but the rest of the book is sometimes considered editorial because it isn’t advertising anything. The copyright laws are exceedingly confusing. Can you please help me?
Thank you!
You really need to contact an Intellectual Property or literary attorney. I’m sorry. I can’t answer that question.
Hi Helen, thanks for the post, very informative. My question is related but it is not yet clear to me. I have attended a public event in which hundreds of people gather to listen to music, listen to speech’s and so forth. I observed people showing different emotions, some of them were singing or others dancing and some others were just watching. I have snapped pictures all day. After reviewing the photos, I thought that these set of images would make nice book to remember the day. If I don’t use any of the pictures on the cover and I don’t advertise the book based on the images, is it OK for me to publish this book? I am not sure if I need their authorization or approval before I publish it.
Thanks
You will need to reach out to Helen via her site or call another literary or IP lawyer.
This was really resourceful to read in my research towards publishing my current work of poetry. I do have a question not posed here, though.
I have a photo album gifted to me as a child of the one year my biological father took us on a summer vacation. I would like to use the images of my sister and I, as well as my biological father to compliment each page of written poetry.
Since I have these images as my own property, may I use them as such, or would it be necessary for me to blur out the face of anyone other than myself and my sister (who has given me permission to post photos of her).
For context- the book is poems I have curated about the father who abandoned me days after that very summer trip. The photos in question are taken at the hoover damn, and Grand Canyon as well as Disney land with a Walmart camera we had printed at the store and formulated into a scrapbook.
I am not a lawyer. You need to ask an intellectually property lawyer.
Hi Nina, I have a question about a book I am considering getting published. Over the last 25 years, I have been a Volunteer Fire scene photographer. I am a volunteer fire fighter for the past 50 years, and as a result I do it without Any pay. I have around a million or so digital pictures of fire fighters, fire trucks, police and Ems. I would like to get published a picture book which show fire fighters doing what they do.
All pictures were taken by me personally, and all pictures were taken in public. Please advise if I should get a release for anyone in the picture.
You likely need a release from EVERYONE in the photos. However, I’m no lawyer, so please consult a literary or intellectual property attorney.
Hello Helen, thank you for this very informative post. I still need clarity regarding using illustrator pics of famous people for a Black History “ABC” book. Do you need permission if the images have been disfigured but not beyond recognition? Also, dos the same rule applies for pics purchased from iStock or Getty Images?
Thank you,
Barbara
This is Nina…in my experience, you need permission for such photos. Istock and Getty Images, purchase the version that is okay for use in a book. But I’m not a lawyer, so check with one! If Helen doesn’t respond, you can find her website and email her.
Nice article! Between copyright, privacy, publicity rights, and defamation, there’s a lot to absorb. I would like to awk your opinion . . .
Imagine a person working on a book titled “Bad People.” It profiles various politicians, corporate tycoons, and celebrities who have been convicted of crimes or who are widely reviled as corrupt or sleazy. The tony is basically factual, with a little justifiable outrage.
Imagine a chapter focusing on someone named Joe Blow, who is a shady hedge fund owner. You find a picture of Mr. Blow shaking hands with President Joe BIden in Creative Commons. The photo is licensed for commercial use. So you should be covered for coipyright and publication in a commercial project.
But what about publicity rights? Since this is not a flattering book, it would be impossible to get permission from people to use their images in the book. Would it be prudent to simply not include any images in the book, or do you think it would be legally safe to use images licensed through Creative Commons or a stock image company?
The purpose of the image is simply to illustrate the accompanying text, just as a Wikipedia article about Bill Gates would include a photo of Bill Gates.
Thanks!
Hi, I’m no lawyer…so I can’t answer. But if it were my book, I’d be hiring a lawyer and having him answer these questions.