reply to post by richierich
There are books on this and I'm not about to read you one.
Is Your Use Commercial or Informational?
Unfortunately, there is no definitive test that tells you whether your intended use is informational or commercial. Below are summaries of cases that
straddle the border between informational and commercial uses. Cases with similar facts may seem to have different results often because a judge has
broad discretion in making a determination.
Informational use. A photo of football player Joe Namath was featured on the cover of Sports Illustrated and later used in advertisements to sell
subscriptions to Sports Illustrated. No permission was required because the initial use of the photo was editorial and the subscription ads were
"merely incidental," indicating the nature of the magazine contents. (Namath v. Sports Illustrated, 371 N.Y.S.2d 10 (1975).)
Informational use. The National Enquirer and USA Today held telephone survey polls about the musical group New Kids on the Block. Use of the names and
images of the group in connection with the newspapers' profit-making 900 numbers did not require permission because it was primarily for purposes of
"news gathering and dissemination. " (New Kids on the Block v. News America Publishing Inc., 971 F.2d 302 (9th Cir. 1992).)
Informational use. Public domain film clips of Fred Astaire were used as a prologue to an instructional dance video. The use of the Astaire name was
permitted in the prologue based on the informational content of the video. (Astaire v. Best Film & Video Corp. , 136 F.3d 1208 (9th Cir. 1998).)
Informational use. A film company acquired the rights to re-release 1950s films featuring actress Betty Page and commissioned drawings of Ms. Page to
promote the films. Ms. Page sued to prevent the use of her image and name to promote the films. A court permitted the use because the advertising was
incidental to the re-release and was "newsworthy" due to the reemergence of the two 1950s movies. (Page v. Something Weird Video, 960 F. Supp. 1438
(C.D. Ca. 1996).)
Informational use. Following a Superbowl victory, a San Jose newspaper sold posters of quarterback Joe Montana. Mr. Montana sued but, in a surprising
ruling, a court permitted the use, claiming it was newsworthy because of the "relatively contemporaneous " publication of the posters with the news
event. (Montana v. San Jose Mercury News, 34 Cal.App.4th 790 (1995).)
Commercial use. During the NCAA tournament broadcast, an ad for Oldsmobile featured a voice asking who held the record for being voted the most
outstanding player of the tournament. The answer printed onscreen "Lew Alcindor, UCLA, '67,'68,'69." (The basketball player Kareem Abdul-Jabbar
was previously known as Lew Alcindor.) The ad stated that Oldsmobile was the winner of a Consumer's Digest award three years in a row and ended with
the statement "A Definite First Round Pick." Abdul-Jabbar sued, claiming that his name was used without permission. The court decided in his favor,
ruling that although the advertisement provided information, the overall effect was commercial and required permission. ( Abdul-Jabbar v. General
Motors Corp., 85 F.3d 407 (9th Cir. 1996).)
Commercial use. Los Angeles Magazine contained a fashion article which featured a digitally modified photograph combining Dustin Hoffman's head with
a photograph of a male model's body in a gown and woman's shoes. The text stated: "Dustin Hoffman isn't a drag in a butter-colored silk gown by
Richard Tyler and Ralph Lauren heels. " Although the photo was used in an informational article, the overall effect of the use was commercial,
promoting the specific designers. ( Hoffman v. Capital Cities/ABC Inc., 33 F. Supp.2d 867 (C.D. Ca. 1999).)
Commercial use. A photo of Cher was featured in Forum Magazine and was later used in advertisements for subscriptions to the magazine. Beneath Cher's
photo in the advertisements was a caption implying Cher's endorsement of the magazine. The implied endorsement created a commercial use of the name
and distinguished this use from the case involving Joe Namath, above. ( Cher v. Forum Inter. Ltd., 692 F.2d 634 (9th Cir. 1982).)
Websites: Informational or Commercial?
Can a website be informational if its primary purpose is to promote a business?
Websites raise many of the issues in the borderline cases in the previous section. Several factors are weighed to determine whether the use of a name
or image on a website is commercial or informational:
If the use of the name or image at the website relates to a newsworthy event, the use is more likely to be informational.
The more website space devoted to selling, the less likely the use is informational.
The longer the person's name or image remains at the site, the use is less likely to be informational.
The more separation between the informational content and the sponsorship of the site and related advertisements, the more likely the use is
Free Speech May Obviate Need for Release
A person's name or image can be used for commercial purposes without permission if the commercial use qualifies as free speech. This generally occurs
when the use is categorized as a parody.
For example, a company sold trading cards featuring caricatures of major league baseball players. Text on the cards ridiculing player salaries and
egos included a statement: "Cardtoons baseball is a parody and is NOT licensed by Major League Baseball Properties or Major League Baseball Players
Association." A federal court permitted the use of player's names and caricatured images as free speech. (Cardtoons v. Major League Baseball Players
Assn., 838 F. Supp. 1501 (N.D. Okla. 1993).)
However, individuals wary of litigation should weigh the consequences and costs of a lawsuit before claiming a free speech right to use an
individual's name or image.
To have any legal effect, a disclaimer must be in close proximity to the person's image or name and as prominent as the name or image. It must also
disclaim any sponsorship, endorsement or association with the product or service involved. Because of the legally tenuous value of disclaimers, it is
generally not wise to rely on them for protection.
Chang v. Virgin Mobile USA, is a real good one to read.
What should you bear in mind when photographing people?
There is no general legal requirement to obtain someone’s authorization to take his or her photograph. However, there are situations where
photography can infringe on important social interests such as national security, protection of children, right of privacy, etc. Most of these
situations are strictly controlled by national laws and regulations. Irrespective of the legalities, there are also some things a photographer should
not photograph for ethical reasons. Certain photographs of people may amount to exploiting the persons concerned or misrepresenting the truth. If you,
as a photographer, know the law and one’s legal rights, you will also be in a better position to find solutions that minimize your legal risks.
Often, you may be free to take a photograph of a person, but the way the image is used may give the person shown in the photograph a right to take
While copyright is a federally protected right under the United States Copyright Act, with statutorily described fair use defenses against charges of
copyright infringement, neither privacy nor publicity rights are the subject of federal law. Note also that while fair use is a defense to copyright
infringement, fair use is not a defense to claims of violation of privacy or publicity rights. Privacy and publicity rights are the subject of state
laws. While many states have privacy and/or publicity laws, others do not recognize such rights