Dan Marchant wrote in post #18373113
The current state of afairs is as follows
1. You need people's permission to use their likeness for marketing.
2. Ignore point 1 because artist/photographers portfolios are exempt from the above.
3. Ignore point 2 because it was made law before the internet existed, when a portfolio was something you showed to a person standing next to you. A web portfolio could arguably be considered publishing, because it is visible to many people at once; and if there is one thing lawyers are good at it is arguing.
Conclusion
Errr yea, good luck with that.
...so Point 3 returns you back to Point 1. Best practice is 'get their permission'...via email you can keep (or in writing, on paper) to avoid future need for legal hassles.
RocketLawyer says:
"That distinction is pretty important. If you met a celebrity on the street and asked to take a picture with them, you could actually sell that picture to a newspaper or publication. That celebrity isn’t promoting anything (after all, you aren’t using their likeness to sell sneakers). They’re simply another person, on the street, who posed for a picture.
But were you to use that same picture in an advertisement for your website, product, or idea, you’d be violating that person’s use of likeness rights. They didn’t agree to promote your website, product, or idea, so you can’t simply use the picture in any way you see fit. "
The current legal tack that is ofeten taken is that unconsented use of a photos can be stopped as 'a violation of your right of privacy if those photos were not meant to be made public'. if the photos were shot inside the studio, one can readily claim that they never intended for the photos to 'get out' beyond their living room wall. But if the photos were shot in a public location, the 'right to privacy' argument goes counter to any expectation of privacy.
Right to Privacy is very different from Right of Publicity, in which specific rights will depend on the state you are in--the right to publicity varies by state.
Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes.
California's statute protects against uses of a person's likeness for advertising purposes. Specifically, the statute prohibits “knowing” use of a person’s name/likeness/etc.,
on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent.
Courts have thus interpreted the statute to impose a three-step test:
- Was there a “knowing” use of the plaintiff’s protected identity?
- Was the use for advertising purposes?
- Was there a direct connection between the use and the commercial purpose?
And there is a 2 year statute of limitations on use on a website. Both the statutory and common law right of publicity claims are subject to a two-year statute of limitations.
I have not been able to find any information about legal requirements concerning a photographer's use of client images in a portfolio or studio window in CA.
