“I am a portrait photographer and I have a website where I maintain online galleries. In my viewpoint this is not an ad, merely an art exhibit; I do not view them as being used in a commercial way. My contract has a clause in it stating that I can use the images from that session for self-promotion. However, since I am a newbie, I have a included photographs that I took while I was building my portfolio and before I started charging and using a contract. Now I am wondering if this is illegal for me to display these images that I don’t have a contract/release for.”
Many photographers often have questions surrounding the use of the photographs that they take and display online. One of the most common questions involves the commercial use of photographs that they take of their clients.
Is it okay to……
Is it okay to use the photographs to promote the photographer’s business?
Is it okay to submit these photographs to contests or to use these photographs in an online gallery showcasing the photographer’s quality of work?
Like so many other things in the law, the answer to this question is often fact dependent. In this blog post, we will attempt to examine some of the rules related to this area of the law. We’re going to look at whether galleries are a commercial activity and what to do in order to use images in these!
Is a gallery a commercial activity?
A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. 28 USCS § 1603. Having an online gallery is commercial activity. The standard applied is using it to gain an advantage in trade.
The Crump case that we’ve cited below is the best for this. In that case, and important to notethe ONLY thing that the person used was the name “dcrump” at the end of a website address link.
“In September of 1999, Plaintiff learned that Defendant was using the web address http:/o/www.rmaonline.net/dcrump
to promote Defendant’s Equine Promotions business, and immediately thereafter demanded that Defendant cease using the name ‘Crump’ or the web location comprised of the letter combination ‘dcrump’ in any internet advertising, promotion, or web address, or in any other medium. Defendant continued to use the letter combination ‘dcrump’ as part of the web address http:/o/www.rmaonline.net/dcrump
, and merely inserted a disclaimer on the Equine Promotions web site (to which all inquiries using the web location ‘dcrump’ were forwarded) stating that the site was not affiliated with Diane Crump or Diane Crump Equine Sales of Bentonville, Virginia.”
Here is what the court said (shortened):
“The plaintiff’s name “dcrump” was used in commerce to promote the Defendant’s new and competing horse brokering business. The only historical use of the name “dcrump” in the horse brokering market was by the business in which the Plaintiff was engaged and in which the clear intent was to trade on the fame associated with the Plaintiff’s name in horse circles. It is the association of name with a particular person in a specific context that gives the name both its practical significance and determines the scope of its legal protection under § 8.01-40. People rarely use their full names; even in formal legal documents and business letters, the practice is to use the middle initial not the full middle name. On the other hand people regularly use their nicknames and initials to identify themselves, and these permutations of a person’s name are no less their name within the context of their interaction with other persons than their full name. “Under the common law, a person may adopt any name he or she wishes….” In re Change of Name of Miller, 218 Va. 939, 942, 243 S.E.2d 464 (1978).
On the Internet today, persons regularly use their first initial and last name, as was done in this case to identify their internet address. In the instant case, the use of the name “dcrump” was clearly intended to be a name that would lead interested horse buyers to the defendant’s web page. In the context of a web address, “dcrump” is a name. Since it was used to promote the defendant’s business, its use without permission was prohibited by Virginia Code § 8.01-40
So you can see that use of name, face or likeness in a gallery
does constitute commercial work because the reason for galleries/portfolios are to solicit paid work!
Okay so it’s commercial activity…how do I protect myself now?
Since your images are going to be used
Many States recognize a “right of publicity,” either through the common law,statutes, or both. While the specifics will vary from jurisdiction to jurisdiction, the typical elements of a “right of publicity” claim will involve the following:
- The use of a likeness, name, or identity of another person
- For a commercial purpose
- Without the consent of that person
- Resulting in damages.
Thus, the commercial use of a photograph created by photographer can pose issues, even though the photographer is the rightful owner of the copyright related to that photograph as the creator thereof.
Moreover, even in States that do not recognize a common law right of publicity, a specific State statute might impose civil or criminal penalties for the misuse of the likeness of another. In the Commonwealth of Virginia, there are two statutes that are worthy of discussion.
In the Commonwealth of Virginia, “A person, firm, or corporation that knowingly uses for advertising purposes, or for the purpose of trade, the name, portrait, or picture of any person resident in the Commonwealth, without having first obtained the written consent of such person, or if dead, of his surviving consort, or if none, his next of kin, or, if a minor, of his or her parent or guardian, as well as that of such minor, shall be deemed guilty of a misdemeanor and be fined not less than $50 nor more than $1,000.” Va. Code. § 18.2-216.1
Moreover, “Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.” Va. Code § 8.01-40(A)
There do not appear to be very many cases involving a criminal prosecution in the Commonwealth for the misappropriation of a likeness of another. (A search through case law revealed only three cases in which § 18.2-216.1 was mentioned an then, only in passing.) However the courts in Virginia are often called upon to apply Code Section § 8.01-40(A). The Courts have ruled that a right to recovery can exist when even a name is misappropriated. See Town & Country Properties v. Riggins, 249 Va. 387 (1995); Crump v. Forbes, 52 Va. Cir. 52 (2000).
But I own copyright – doesn’t that make a difference?
Ownership of the image and the right to publicity are two vastly different things. Ownership is owning the property of the image itself, but you do not own the person’s likeness or physical face just because you merely photographed it. See more information on Copyright Ownership here: Violation of Copyright, Copyright 101, and Copyright vs. Print Release.
If you don’t have a release it’s in your best interest to not post and use these images in any manner that may be seen as commercial.
What does all of this tell us?
How can a photographer protect themselves from the application of such statutes? One of the best ways to do this is with a clearly drafted contract that grants the photographer the right to use the image or likeness of another in a specific way. Such a license would grant consent for the use of that image for the promotion of the photographer’s business or for other purposes (also known as a model release – see more information on model releases here).
While there are other statutory, common law and Constitutional protections that might apply to the use of a photograph or likeness of another, one of the best ways to protect yourself is through the skillful use of written contractual provisions designed to protect the interests of the photographer and client alike.
No photographer should do business without a contract! Get yourself protected and released from possible claims of clients through a model release!