From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. A newspaper photographer goes to a public event and takes 10 photographs. The newspaper publishes one photo in the paper and another on the paper’s website to report news of the event. Then, the newspaper posts all ten photos on its website and sells hard copies (or digital files) of the photos to the public. Is the newspaper exposed to liability from the people who are in the photos that the paper is using to make money from?

A: This question raises quite a few issues because it reflects the ongoing friction between a person’s right to manage his or her own publicity and right of privacy versus the public’s right to know under the First Amendment. The short answer is that sale of digital file photos is probably acceptable under Florida law, so long as certain parameters are met. However, this may not be as clear in other states where the newspaper must rely on the general newsworthy exemption to a person’s right to publicity/privacy. For that reason, care should be taken to maintain the link between the photos and the news story to which it relates, as explained below.

The major area of concern in selling the photographs relates to potential liability for misappropriating a name or likeness for a commercial purpose under Florida and other state law.

Specifically, section 540.08 of the Florida statutes prohibits the publication or display for commercial or advertising purposes of the name, photograph, or other likeness of a person without express consent. In the event the consent is not obtained, the person whose name or photograph is so used may bring an action to enjoin such unauthorized publication, and to recover damages, including punitive damages.

At the outset, it should be noted that if the photos merely show spectators, audiences, or groups, where a person’s appearance is only incidental, there probably is little concern with a misappropriation claim. However, if the photos depict a single person or few people and are being sold to demonstrate those people (as opposed to such people merely being incidentally depicted in the background, or otherwise not as the focus of the photo), then a misappropriation issue might arise. Newspapers should consider the business risks associated with the sale of individual photos (especially non-celebrities and children) – the revenue generated may not be worth the risk of getting entangled in a legal battle over the sale of a newspaper’s photos. Newspapers should be especially wary of selling photographs of individual children, as youngsters make very sympathetic plaintiffs in these types of disputes.

If a misappropriation issue arises, it should be noted that Florida cases have interpreted the term “commercial or advertising” purposes in the statute narrowly to mean using a person’s name or likeness to directly promote or advertise a product or service. In other words, the photos must be used solely to attract attention to a work that is not related to the identified person. See Tyne v. Time Warner Entertainment Co., 901 So.2d 802 (Fla. 2005). Thus, under Florida law, merely publishing one’s name or likeness for a profit with no connection to a product or service is not prohibited by the misappropriation statute.

Florida (and other states) courts adopt this constrained view out of deference to the First Amendment. They explain that merely because the videos, motion pictures, or photographs are sold for private profit should not subject them to misappropriation liability which would thereby remove the constitutional protections applicable to these forms of expression. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002).

In the present case, although the photos being sold contain images of persons and these images are used to sell copies of the photos, they are not associated with a product or service unrelated to the photos. In other words, the images are not being used to directly promote a product or service. Thus, under Florida law, section 540.08 liability likely will not apply to sale of the website photos.

However, there remains a problem with respect to other jurisdictions which have a stricter misappropriation statute or case law that does not constrain the tort in the way Florida courts have. For example, if the website photos are sold to someone in, say, Rhode Island or contain the image of a Rhode Island resident, the lawsuit might be brought in that state. If Rhode Island, as is the case in many states, does not happen to have a misappropriation law on the books like Florida’s, the courts might have to rely on the general common law “newsworthiness exception” to the person’s rights of publicity and privacy to protect news or information concerning matters of public interest. In that case, the plaintiff would argue that sales of such “gallery” of photos in which the person appears is separate from the newsworthiness for which the exception applies. Although this may not be a successful argument in the end, it could lead to a longer and more costly legal battle then would be the case in Florida and related states.

In light of this possible exposure in other jurisdictions, Deanna Shullman, a First Amendment lawyer at the Shullman Fugate firm in West Palm Beach, recommends that newspapers should make efforts to retain the newsworthy aspect of the gallery photos. To that end, the following steps are suggested:

  1. Caption gallery photos so that each is tied to their newsworthy purpose (i.e. “local crowd reacts to 4th down touchdown at Saturday night’s Miami Lakes Titan’s game”).
  2. Include the news story (or at the very least the caption) with the photos so that when the photos are purchased the buyer receives both the picture and news story. This keeps the link between the photos and their newsworthy purpose. It is noted that including the news story may be problematic for those that use outside vendors to sell their photos and have limited control over what gets sent to the consumer, but these issues should be resolved, perhaps contractually, if possible.
  3. If the photos are in digital files, it may be helpful to encourage and permit subscription to the publication through the same email that transmits the picture – or a request that the purchaser “follow” the publication if it’s a free service.
    As a general matter, newspapers should be careful with such practices. And even though misappropriation of one’s image is usually associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image for commercial purposes. As indicated above, selling photos of public events with images of unidentified persons for the general news interest they generate is acceptable but the newspaper should make the effort to tie the photos to the news story to preserve the newsworthy exemption as described above. Newspapers should seriously assess whether the risks of selling individual photographs outweigh the revenue generated through the sale of such photos as lawsuits are more likely to arise from the sale of individual photos than group shots.
    Care should be taken to steer clear of any sale or promotion of the photos that might relate to any advertising campaign or any promotion of a product or service apart from the photos themselves as this could give rise to liability under 540.08.
    It should also be noted that this advice is not applicable to the sale of photographs not taken by the news agency offering them for sale, which raises a set of additional legal issues outside the scope of this response.