By Bernard W. Gerdelman

Legal issues for photographers generally fall into two categories: those related to lawful subject matter of the photographs- that is, what can be lawfully photographed and for what purposes can the photograph be used, and those related to the legal rights of the photographer in his or her work and how those rights are protected.

A constructive discussion of these issues must be supported by a rudimentary understanding of the origin of the laws applicable to the issues and the basic principles of those laws. Generally, the federal laws involved in determination of what may be photographed and how the photograph may be used are the right of freedom of expression under the First Amendment to the United States Constitution, the United States Copyright Act, federal laws protecting the security of the United States and, occasionally, the Lanham Act also known as the United States Trademark Act. The state laws involved in this issue include the right of privacy, the right of publicity, conversion, trespass, and intentional or negligent infliction of emotional distress. While federal laws are supposed to be uniformly applied throughout the United States, state laws differ from one state to the next. While many states recognize trespass or the right of publicity or the right of privacy, for example, these concepts may be viewed very 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. The state law discussions contained in this paper are limited to the laws of Missouri unless otherwise explicitly stated.

Lawful Subject Matter

There are some basic limitations on the subject matter of photographs. A photographer will be liable in a civil action if he takes a photograph that violates the right of privacy of another. 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. A photographer will be civilly liable if he takes and uses a photograph in such a way that it violates the copyrights, trademark rights, trade dress rights, or publicity rights of another. To avoid any of these situations the photographer must understand the basic principles of the right of privacy, the right of publicity, copyright, and trespass.

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. There are no statutes in Missouri that address the right of privacy. Violation of one’s right of privacy is considered a “tort” or civil wrong which gives rise to the right to sue in state court for damages, an injunction or both. In Missouri only a natural person, not a legal entity such as a corporation, enjoys a right of privacy.

Causes of Action

Missouri recognizes four separate types of violations of the right of privacy: invasion of privacy, public disclosure of private facts, portrayal in a false light, and appropriation of a person’s identity.

1. Invasion of Privacy. 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, and personal financial information such as credit status and bank balance. Various types of activity can constitute an invasion of another’s privacy. Taking photographs of a person in a location where that person has a reasonable expectation of privacy, such as in that person’s home or in a public restroom, would invade a person’s privacy.
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 composed of four elements: publication or publicity, the absence of a waiver or a privilege, the facts must be private matters in which the public has no legitimate interest, and the publicity must bring shame or humiliation to a person of ordinary sensibilities. The requirement of publication has been held to mean communication to the public in general or to a large number of persons. This publication may occur through either word or image. 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. Furthermore, if the image is gained through unreasonable means, such as trespass on private property, the victim may have a cause of action under both the invasion of privacy and publication of private facts torts.
3. Portrayal in a False Light. No Missouri courts have ever allowed a claim under this theory and it is not pertinent to photography.
4. Appropriation 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. To support a cause of action for violation of a person’s right of publicity, Missouri requires the appropriation of a person’s identity for commercial advantage by using without consent the person’s name, likeness, or other indicia of identity resulting in commercial loss to the plaintiff or commercial benefit to the defendant. 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 appropriation 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 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 pecuniary gain to the defendant resulting from the use.

Remedies

If a court determines that a plaintiff’s right of privacy has been violated, there are two types of relief to which the plaintiff may be entitled. The plaintiff 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 to cease the conduct complained of. Generally the amount of actual damages in these cases is determined by the level of emotional distress that the plaintiff 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.

Conclusion

While right of privacy cases in Missouri have not involved computers or the Internet, it seems inevitable that they will. Computers have become the repositories of most of our private information. The development of “spyware” and the pervasiveness of computer “hacking” have made this information vulnerable to discovery by third parties, sometimes in connection with domestic disputes, sometimes in connection with identity theft. Furthermore, the Internet has made the publication of this private information to the world as simple as pushing a button. While cases brought to enforce the right of privacy in Missouri have thus far been relatively rare, this cause of action seem very well suited to provide relief in future cases involving the unauthorized access to information stored on a computer and the publication of that information to the Internet.