by Bernard W. Gerdelman
Many articles attempt to establish general rules pertaining to the circumstances under which people may be photographed without liability to the photographer. However, few discuss the underlying legal theories supporting those rules. A constructive discussion of these issues must be supported by a rudimentary understanding of the laws applicable to the issues. The factors that control the applicability of particular laws are (1) the circumstances under which the photograph was taken; and (2) the uses that will be made of the photograph.
Generally, the federal law involved in this issue is the First Amendment to the United States Constitution guaranteeing freedom of expression. The state laws involved include the right of privacy, the right of publicity, and the law of trespass. Many states recognize generally the concepts of trespass or the right of publicity or the right of privacy, but these concepts may be viewed differently from state to state. The elements necessary to support a claim or the damages recoverable or the defenses available may be different. Consequently, before taking any action that may be questionable, the photographer should have a basic understanding of the laws of the jurisdiction where he or she is working.
There are some basic limitations on the use of people as the subject matter of photographs. A photographer will be liable in a civil action if he takes a photograph of a person and in doing so violates that person’s right of privacy. A photographer will also be civilly liable if he or she takes and uses a photograph of a well-known person, such as a sports or show business personality, in a “commercial” context. Further, a photographer may be liable for trespass if he goes onto the property of another without permission to take a photograph of a person, even if the photographer could have taken the same photograph from public property. To avoid any of these situations, it is helpful for the photographer to understand the rights asserted against photographers that have led to photographer liability in photographing people.
The Right of Privacy
The right of privacy has been described as “the right to be left alone.” It arises solely from law established by court decisions. In many states, including Missouri, there are no statutes in that address the right of privacy; the right has been created through court decisions. Violation of one’s right of privacy is considered a “tort” or civil wrong that gives rise to the right to sue in state court for damages, an injunction, or both. In most, if not all, jurisdictions, only a natural person, not a legal entity such as a corporation, enjoys a right of privacy.
Causes of Action
Missouri recognizes three separate types of violations of the right of privacy pertinent to photography: intrusion upon seclusion, public disclosure of private facts, and misappropriation of a person’s identity.
•1. Intrusion upon Seclusion. This is an intrusion upon a person’s seclusion that would be highly offensive to a reasonable person. Missouri courts have viewed this tort as requiring three elements: the existence of a secret and private subject matter, a right in the plaintiff to keep that subject matter private, and the obtaining by the defendant of information about that subject matter through unreasonable means. In various decisions the courts have consistently designated certain types of information as confidential or private. Among them are medical information, employment information, personal financial information, such as credit status and bank balance, and sexual and reproductive information. Various types of activity can constitute intrusion upon the seclusion of another. Taking photographs of a person in a location where that person has a reasonable expectation of privacy, such as in that person’s home, in a medical office, or in a public restroom would intrude upon a person’s seclusion. Unreasonable means may be the use of a telephoto lens or trespassing on private property to get close enough to take the desired photograph. Note that the use of the photograph and whether the subject of the photograph is recognizable are irrelevant to the establishment of this particular claim. It is the taking of the photograph under unreasonable circumstances that is the crux of the claim. Of course recognizability of the subject and the use of the photograph may affect the amount of damages, with broader circulation leading to greater humiliation.
•2. Public Disclosure of Private Facts. This requires public disclosure of what a reasonable person would consider private facts about such person under circumstances that a reasonable person would consider highly offensive. Missouri courts have generally found this tort to be composed of four elements: publication or publicity, the absence of a waiver or a privilege, the nature of the facts as private matters in which the public has no legitimate interest, and the publicity causing shame or humiliation to a person of ordinary sensibilities. For example, the publication of a photograph of a woman leaving an abortion clinic, or a couple leaving a fertility clinic, or a person entering a psychiatrist’s office may be sufficient to qualify. “Publication” does not require communication to the public in general; distribution to a group of people may be sufficient under some circumstances. Use of the photograph and recognizability of the subject are relevant to this claim because there must be “publication” that causes shame or humiliation. However, case law suggests that use of the photograph commercially is not necessary to constitute publication. Display of the photograph in a photographic competition, for example, may be sufficient.
•3. Misappropriation of a Person’s Identity. This tort involves the unauthorized use of another’s name or likeness from which the user derives a benefit. An example of this would be the use of a photograph of a person, without that person’s consent, to promote a political cause or the sale of a product. This is not to be confused with the right of publicity, which is also a tort recognized in Missouri and is discussed further below. Misappropriation of identity is generally available to persons who are not “famous” and have no well-known public image. The tort protects against intrusion upon an individual’s private self-esteem and dignity. The measure of damages is typically the amount of emotional distress experienced by the plaintiff. The use of the photograph is critical to this claim. There must be some level of publication of the photograph for the user of it to obtain a benefit, and the most common fact pattern giving rise to a claim under this violation involves commercial use of the photograph providing monetary benefit to the photographer or to the person who purchased the publication rights from the photographer. This is typically the cause of action that would be asserted by a person, not a professional model or personality, whose image is used in an advertisement where the photographer failed to obtain a proper model release.
If a court determines that a person’s right of privacy has been violated, there are two types of relief to which the person may be entitled. The person may receive monetary damages, and if the court determines that damages are not an adequate remedy, it may enter an injunction – an order compelling the defendant photographer to cease the conduct complained of which, in most cases, would be use or publication of the photograph. Generally the amount of actual damages in these cases is determined by the level of emotional distress that the plaintiff/victim can demonstrate he or she experienced as a result of the defendant’s conduct. Further, because the violations of rights of privacy are intentional torts, the plaintiff may be entitled to collect punitive damages. To do so the plaintiff must show that the defendant either knew or had reason to know that there was a high degree of probability that the defendant’s conduct would result in injury or that the defendant acted with evil motive or reckless indifference to the rights of plaintiff. Punitive damages are generally assessed in an amount determined by the judge or the jury, as the case may be, sufficient to punish the offending party and to deter him/her from like conduct in the future, and may be increased as the offensiveness of the conduct increases.
Right of Publicity
To support an action for violation of a person’s right of publicity, Missouri courts require a person to show that his or her identity was misappropriated for commercial advantage by using the person’s name, likeness, or other indicia of identity without permission, resulting in commercial loss to the plaintiff/victim or commercial benefit to the defendant/photographer. Instead of dealing with private information, a violation of the right of publicity deals with the unauthorized commercial exploitation of the identity of a person who is already in the public eye, for example, a sports or show business personality. The misappropriation-of-identity tort protects against intrusion upon an individual’s private self-esteem and dignity, while the right of publicity tort protects against commercial loss caused by misappropriation of an individual’s identity for commercial exploitation. Consequently, the measures of damages in the two torts are different. In the case of a misappropriation of identity the measure of damages is not only the pecuniary loss to the plaintiff, but also the amount of emotional distress experienced by the plaintiff. In the case of right of publicity, the measure may be the pecuniary loss to the plaintiff or the unjust pecuniary gain to the defendant resulting from the use. Commercial use of the photograph is a necessary element to proving a claim of violation of the right of publicity. When that commercial use is the promotion or endorsement of a product or service, the issue is easily decided in favor of the plaintiff. When the commercial use is the sale of the photograph itself as “art,” the issue is more difficult, because the court must balance the photographer’s right of freedom of expression protected by the First Amendment against the celebrity’s right of publicity.
This is an independent cause of action that can be asserted whether on not violation of the right of privacy occurs, but it can also provide the “unreasonable means” necessary to establish a cause of action for intrusion upon seclusion. “Trespass” is defined as any intentional entry onto the property of another without consent. There must be an affirmative, intentional act, but it is not necessary to show damage as a result of the act. If consent for such entry is induced by deceit or misrepresentation, and the consent would not have been given but for such deceit or misrepresentation, the consent is void. The plaintiff who can show trespass is entitled to actual damages, but if actual damages cannot be proved, the plaintiff is still entitled to “nominal” damages which enables the plaintiff also to receive punitive damages if it can be shown that the trespasser acted in willful or malicious disregard of the rights of others. A photographer may be civilly and criminally liable in trespass if he or she enters on private property without the permission of the owner in order to take a photograph, even if no photograph is taken.
Application of Legal Concepts to Facts – Representative Cases
Several cases from various jurisdictions illustrate the principals stated in the foregoing section.
In the case of Crow v. Crawford & Company, decided by the Missouri Court of Appeals, a husband and wife brought an action against the husband’s employer and its agents for, among other claims, unreasonable intrusion upon their seclusion. Christopher Crow had filed a worker’s compensation claim against his employer that the employer suspected was false. The employer engaged a company to investigate the claim, and one of its employees followed the Crows and made clandestine videotapes of them to show that Mr. Crow was engaging in normal physical activities despite his claims that he had been disabled by a work-related accident. One of the videotape segments showed Mr. Crow preparing and launching his boat in a public park and, coincidentally, Mrs. Crow urinating in an unenclosed area within the park. Mrs. Crow alleged that urination is a secret and private subject matter, that she had the right to keep that subject matter private, and that the defendants obtained information regarding that subject matter by unreasonable means. The court agreed that elimination of bodily wastes is ordinarily a private matter, but where, as in this case, the subject matter is exposed to public view with no real expectation of privacy, the matter does not retain its secrecy. The court stated that it would find differently if Mrs. Crow had been in a secluded area or in a public restroom, but it noted that the videographer had made no particular effort to record the video tape and Mrs. Crow was in plain view. The court also found that the information was not obtained through unreasonable means. Because the subject matter was not private and no unreasonable means were employed to obtain it, the court determined that there was no intrusion upon seclusion.
In Furman v. Sheppard, a Maryland Court of Appeals case, Irving Furman brought an action for intrusion upon his seclusion against an investigator who videotaped his activities without his consent and against the investigator’s employer. Mr. Furman was a plaintiff in a personal injury suit, and the insurance company obligated to cover the claim engaged an investigator because it believed that Furman’s injury claims were exaggerated. As part of his investigation the investigator trespassed on the grounds of the Maryland Yacht Club where Furman was a member and, while trespassing, videotaped Mr. Furman engaging in various physical activities. Mr. Furman filed suit, alleging, among other claims, that Sheppard had intruded upon his seclusion and publicized private facts about him. The court first found for Sheppard on the intrusion count noting that (i) not all trespass constitutes “unreasonable means,” and trespass should not be considered definitive when Furman’s activities that were videotaped could have also been observed by the public from a public location; (ii) not all activities conducted on private property are private matters, as in this case where Furman was working on a boat; (iii) Furman, by making himself the plaintiff in a lawsuit, had also made himself subject to “reasonable investigation,” thereby lessening his expectation of privacy. In also denying Furman’s claim for publication of private facts, the court relied on the fact that Furman’s activities were conducted in navigable water in open view of the public and, although videotaped surreptitiously by means of trespass, could not be considered private. Note that the investigator would have been liable for trespass in this case, but Mr. Furman could not assert this claim because the property on which the investigator trespassed was owned by the yacht club, not Furman.
The Missouri case of Williams v. KCMO Broadcasting Division also involved videotaping rather than photography. KCMO videotaped and then broadcast Williams emerging from the courthouse with his hands up after his arrest, the police searching him while his hands were against a police vehicle, and the police placing him in a police car. The police ultimately released Williams without filing charges against him and he subsequently sued KCMO for public disclosure of private facts. The court found present the elements of publication or publicity, the absence of a waiver or a privilege, and that the publicity causing shame or humiliation to a person of ordinary sensibilities. However, the court determined that the matters made public were not private matters, but matters in which the public had a legitimate interest, and Williams’s claim could not stand. Note that Williams did not assert invasion of privacy here because no unreasonable means were used to obtain the video recordings.
The courts reached a different result than the Williams Court in Daily Times Democrat v. Graham, decided by the Alabama Supreme Court, Lambert v. Dow Chemical Company from the Louisiana Court of Appeals and Leverton v. Curtis Publishing Company decided by a federal district court in Pennsylvania.
In Graham the defendant newspaper published the plaintiff’s picture in connection with a general story concerning a local fair. As the plaintiff and her children were emerging from the “Fun House” at the fair a jet of air blew her skirt above her waist and exposed her undergarments and legs from the waist down. Ms. Graham brought an action for public disclosure of private facts and the newspaper defended on the grounds that the photograph concerned a matter of public interest, to wit: the fair. The court found that while the fair was a matter of public interest, the photograph itself, which indecently exposed Ms. Graham, was not, and entered a judgment in favor of Ms. Graham. .
In Lambert the plaintiff, an employee of Dow, was severely injured on the job. Dow representatives took photographs of Lambert at the hospital and subsequently showed them at Dow’s safety meetings. Lambert brought an action against Dow for public disclosure of private facts. The court found that Lambert’s injuries were not a matter of general public interest and that “publication” of the “ghastly” photographs at the meetings was reasonably calculated to embarrass Lambert, and Lambert was entitled to a judgment.
Finally, in Leverton the defendant published in a magazine a photograph of the plaintiff, Leverton, as she lay in the street immediately after having been struck by an automobile, her face distorted by pain and her clothing disarranged so that her legs were exposed to the hips. The magazine argued that the photograph was newsworthy and the event was a matter of public interest. The court, however, focused on the fact that the photograph was published two years after the occurrence and could have no news value at that point. This case shows that one should not assume that because the subject matter of a photograph is at one point in time a matter of public interest, it will always be a matter of public interest.
The 1911 case of Munden v. Harris established the tort of misappropriation of identity in the State of Missouri. Munden, a five year old boy, brought an action through his parents against a group of men who were in the business of selling jewelry. As pled by Munden, the defendants “invaded plaintiff’s right of privacy by willfully and maliciously using, publishing and circulating his picture for advertising their business of selling merchandise, thereby destroying his privacy and humiliating, annoying and disgracing him and exposing him to public contempt.” The defendants did not deny the use of Munden’s photograph for advertising purposes, but answered, based upon the law then in effect, that there was no recognized right of privacy in the law other than in cases in which damage to physical property also occurs. The Missouri Court of Appeals, going against existing precedent, found for Munden. In doing so it concluded, “one has an exclusive right to his picture, on the score of its being a property right of material profit. We also consider it to be a property right of value, in that it is one of the modes of securing to a person the enjoyment of life and the exercise of liberty . . . . If this right is, in either respect, invaded, he may have his remedy, either by restraint in equity or damages in an action at law.”
In the case of Tellado v. Time-Life Books, Inc. the plaintiff brought an action for misappropriation of his likeness through Time-Life’s use of his photograph taken in 1966 during the Vietnam War. Without Tellado’s permission Time-Life used the photograph in 1981 and 1982 on letters and brochures promoting its multi-volume set of books titled The Vietnam Experience. Time-Life offered two defenses to Tellado’s claim: first, the photograph was used to inform the public of a newsworthy event and not to take advantage of Tellado’s reputation, prestige or other value associated with him; and second, use of the photograph was privileged under the First Amendment because the photograph was taken in a public place during the war and, although it was not used in the book set, it was the kind of subject matter that could have been so used. The court first found that, although the image could have been used in the book set without Tellado’s permission, it was not used for that purpose, but was used for a predominantly commercial purpose – the promotion of the book set. Then the court determined that, while Time-Life’s use of the photograph constituted Constitutionally protected commercial speech, speech is subject to reasonable regulation. The court found that by allowing Tellado’s claim, Time-Life’s free expression was being abridged only insofar as Time-Life was required to share some of its profits with the individual whose likeness helped to stimulate those profits, and was, therefore, reasonable.
In ETW corporation v. Jireh Publications, a federal decision out of Ohio, Tiger Woods sued an artist, Rick Rush, and a publisher for violation of his right of publicity through the creation and sale of a painting and prints depicting Woods and his win at the Masters in 1997. In the foreground of Rush’s painting are three views of Woods in different poses. In the center, he is completing the swing of a golf club and on each side he is crouching, lining up, or observing the progress of a putt. Woods’s caddy is to his left, and to his right is his final round partner’s caddy. The Augusta National Clubhouse is behind these figures. In a blue background behind the clubhouse are likenesses of famous golfers of the past looking down on Woods. The defendants asserted the First Amendment as a defense, claiming that the painting constituted protected expression. The court found that Rush’s painting constituted expression protected by the First Amendment, but noted that the artist’s First Amendment Rights must be balanced against the right of publicity. The court then went on to state, “We find that Rush’s work does contain significant transformative elements which make it especially worthy of First Amendment protection and also less likely to interfere with the economic interest protected by Woods’ right of publicity. . . . Rush’s work does not capitalize solely on a literal depiction of Woods. Rather, Rush’s work consists of a collage of images in addition to Woods’ image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods’ achievement in that event. Because Rush’s work has substantial transformative elements, it is entitled to the full protection of the First Amendment. In this case, we find that Woods’ right of publicity must yield to the First Amendment.”
Applying essentially the same test used by the court in ETW, the California Supreme Court ruled against the artist Gary Saderup in the case of Comedy III Productions, Inc. v. Gary Saderup, Inc. In that case Saderup created a charcoal drawing of the faces of the Three Stooges. Another of the defendants in the case transferred the drawing by silk screen process to tee shirts that it sold at various retail outlets. Comedy III, which had purchased all of the publicity rights of the Three Stooges, brought suit alleging violation of the right of publicity, which exists in California by statute. The court balanced the artist’s First Amendment rights against the right of publicity and found that there was insufficient creative artistic expression in the work to outweigh the right of publicity. In deciding for Comedy III, the court quoted the court in ETW v. Jireh, “When an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity. As is the case with fair use in the area of copyright law, an artist depicting a celebrity must contribute something more than a ‘merely trivial’ variation, but must create something recognizably ‘his own’ in order to qualify for legal protection.”
Some rules of general applicability can be drawn from the foregoing discussion. First, the intrusion upon the seclusion of another does not involve the subsequent use of the photograph or whether the subject of the photograph is identifiable; it involves the circumstances of the taking of the photograph. Regardless of how the photograph will be used and whether the subject is identifiable, the photographer should not take a photograph or attempt to take a photograph under circumstances that would be highly offensive to a reasonable person. Generally this will not happen in a public place because the subject should not have a reasonable expectation of privacy. However, in some circumstances where the subject can expect privacy within a public place, such as in the first aid tent of a public event or in a public restroom, an unreasonable intrusion upon privacy can occur.
Second, if the photograph was taken under circumstances that do not constitute an intrusion upon the seclusion of another, and if the subject is not identifiable, the photograph can be used for any purpose, including endorsement of a commercial product.
Third, even if the photograph was taken under circumstances not constituting intrusion upon seclusion, if the subject of the photograph is identifiable, the photographer must evaluate whether use of the photograph for any purpose would constitute the publication of private facts. Again, if the photograph was taken in a public place, it is unlikely, but possible, that the information conveyed by the photograph could be private facts. Even if the information might otherwise be considered private facts, if the photograph conveys information in which the public has a legitimate interest, and is used to convey that information to the public, the public interest will usually outweigh privacy concerns.
Fourth, do not use a photograph of a person for commercial purposes without obtaining a full release. To do otherwise will, under most circumstances, constitute misappropriation of the subject’s identity or violation of the subject’s right of publicity, depending on the status of the subject as an “ordinary citizen” or a public figure. There are exceptions to this rule where the sale of the photograph itself as art, rather than for use in connection with advertisement or product endorsement, provides the commercial aspect. Under these circumstances the photographer must consider, as the courts did in the ETW and Comedy III cases, whether the photograph exhibits enough artistic creative expression to warrant the First Amendment rights of the photographer outweighing the privacy or publicity rights of the subject. Given the test applied in these cases, in the context of a photograph, the presence of the subject would have to be almost incidental to the overall presentation, or the creative post processing of the photograph would have to be extensive.