Licensing Event Photos - No Release?

Started May 3, 2012 | Discussions thread
Richard Weisgrau
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Re: Licensing Event Photos - No Release?
In reply to lipmonger, May 3, 2012

Actually there is a relatively clearcut answer. When a recognizable person appears in a photograph the use of that photograph for trade or advertising purposes requires a release from the recognizable person. It does not get more clear cut than that.

The photographer that knowingly provides the image for a trade or promotional use without a release is taking a risk. That risk exists even in the case as described in the OP, that is, photos of an event at which people in the event serve the host of the event as employees, etc. The host/employer is not exempt from the right of privacy law by virtue of being an employer. Unless the host/employer has a release there is potential liability for both the host/employer and the photographer. I was an expert witness in such a case where an ex-employee sued her prior employer and a photographer for the use of her image in an ad that was created when she was an employee. She had not released the use of the image for such purpose. The case was settled and never went to trial. If it had gone to trial she would have won, and that is why the case was settled.

In that case, the photographer had stipulated to the client that he did not have and could not provide a release and that such burden was the client's responsibility. He failed however to include an indemnification clause in his engagement agreement so he had to defend the lawsuit and pay a portion of the settlement. Fortunately, he was properly insured and his costs were covered.

How is it that the photographer was sued even though he had made it clear he had no release and that his client was responsible to obtain any necessary release? The photographer argued (supported by my expert testimony) that the party that placed the ad (the client) was required to have the release and that unless the client required that the photographer provide a release the photographer had no responsibility to do so and the burden then fell on the client. The counter argument was that the photographer knowingly provided an unreleased photograph for advertising use and even though the absence of a release was clearly understood by the client the photographer had helped the employer accomplish the advertising and therefor was an accomplice to the invasion of privacy. The photographer pleaded to be released from the suit as an innocent party, and the court rejected his plea. REMEMBER, this matter was never tried so there was no judicial decision in the matter. However, it serves as an example of what can happen.

That said, photographers do provide unreleased photos for advertising use at times. I have done it in the past and again just recently. In the recent case I was asked to provide a photo taken a a horse jumping event of a well known rider. The photo was for a website of venture capital company that was funding a venture for the rider. I was asked to provide the photo by a communications firm building the website. In professional sports photography getting an athlete's release is very difficult, as they guard the value of their likeness. It is common for the ad agencies and advertisers to secure releases directly from the athletes. In my recent case I set two conditions for the use of the photograph. One was that the firm and its client indemnify me against any judgement and provide a legal defense for me in the event of a lawsuit from the subject in the photo. The other was that they provide me with a copy of the release that they obtained from the subject. Why both? I like to have a belt and suspenders holding up my pants when the occasion warrants it.

Keep in mind that an indemnification agreement is not an ironclad guarantee that you will not suffer damages. The indemnifier has to comply and if they don't you have to sue them. In the meantime you will be paying damages to the plaintiff with the hope of recovery from your client. My advice is to avoid licensing third parties without a release from the subject. If you get sued over such a deal, you will have little to no defense to offer, and indemnifiaction is not going to keep you out of court.

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Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography

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