Do you need permission for people in photos?

By Andrew Hudson Published: April 26, 2017 Updated: May 23, 2017

The U.S. Court of Appeals for the Ninth Circuit recently affirmed that copyright law allows photographers to sell photos of people without their permission, as long as the license is for non-commercial use.

“the crucial distinction is ... how [the] copyrighted works are used.”
Maloney v T3 Media, 15-55630 (9th Cir. Apr. 5, 2017)

In 2001, student athletes Patrick Maloney and Tim Judge helped Catholic University win their first-ever national championship trophy for men’s basketball. But they were not consulted or compensated when T3Media sold non-commercial licenses to photos of their win on the NCAA website, pictured above. Maloney and Judge sued for publicity-rights and unfair competition under California law. However, in Maloney v T3 Media (4/5/17), the district and appeals courts held that the federal Copyright Act preempts the athlete’s claims, and the photographer has the exclusive right to distribute the images.

“[A] photo archive that merely sells reproductions of photos of athletes is not infringing the right of publicity of the pictured athletes. Since the vast majority of athletes (both professional and amateur) do not own copyright in such photos, they have no right to control the mere reproduction and sale of their photos per se.”
Maloney v T3 Media, 15-55630 (9th Cir. Apr. 5, 2017)

The justices implied that permission is only an issue for commercial use, being use in trade such as on merchandising, or in advertising.

An unrelated photo of an athlete to break this up

Privacy vs Copyright

The ruling came down to a clash of privacy and copyright. The winner was copyright, since it is a federal right and thereby trumps privacy (publicity) which, if it exists, is generally a state right. The justices noted that copyright gives the photographer the exclusive right to distribute photos, without “interference” from people in the photos.

“[A] publicity-right claim is not preempted when it targets non-consensual use of one’s name or likeness on merchandise or in advertising. But when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use, a publicity-right claim interferes with the exclusive rights of the copyright holder, and is preempted by section 301 of the Copyright Act.”
Maloney v T3 Media, 15-55630 (9th Cir. Apr. 5, 2017)

Some choice quotes

the “core” of the right of publicity is preventing “merchandising [of] a celebrity’s image without that person’s consent”
— Hilton v. Hallmark Cards, 599 F.3d 894, 910 (9th Cir. 2009)

the “core” of the publicity right “is the right not to have one’s identity used in advertising”
— Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1031 (3rd Cir. 2008)

“The basis of a right of publicity claim concerns the message—whether the plaintiff endorses, or appears to endorse the product in question.”
— Toney v. L’Oreal USA, Inc., 406 F.3d 905, 910 (7th Cir. 2005)

Source: Carolyn E. Wright, Photo Attorney, 4/26/17, also see Rebecca Tushnet, 4/06/17.

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