How to Use Images of Real People Without Violating Privacy and Publicity Rights

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Image from Dreasmstime.com

Suppose you find the perfect image for your book cover on the internet—a plucky redhead with a perfect pout. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!

But wait. Do you have a release from the plucky redhead? Do you need one?

Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later, you capture that same author when he is sloppy-faced and drunk at a large reception. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?

Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake.

But you don’t want to walk around with blank releases in your pocket. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?

Using Images with Identifiable People

The rules about using images with recognizable people come down to two considerations:

  • Did the person in the photo have a reasonable expectation of privacy?
  • How is the image being used?

You need to consider both. Passing one test is not enough.

Did the person has a reasonable expectation of privacy?

Generally, people do not have a reasonable expectation of privacy for anything they do in public. The exception is a performance or meeting where you are informed that taking photographs is prohibited. In those situations, you make an implied promise to honor the no-photo request as a condition to attending the performance or meeting.

If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any image showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.

So for the image of the redhead, look closely to see if the photo was taken in a public place? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.

Regarding the famous author, you may assume the author had no expectation of privacy when speaking at the podium and getting drunk at the reception, since both were iprivacy1n public.

The punch in the restroom is less certain. Ask yourself whether the author had a reasonable expectation of privacy. Was it a public restroom at a convention center or a private bathroom at the host’s home? Was the author too drunk to understand his actions were in plain view? There is no right answer here; only factors to consider, including non-legal factors, such as your reputation in the writing community.

There is an exception if the image is newsworthy or addresses a matter of public interest (something decided by a court). In those cases, you may be able to post and publish the photo. Courts balance First Amendment issues against the rights of privacy. However, I would not do so without going over the specifics with an experienced attorney.

Obviously, don’t climb fences, peer through windows, hack computers or phones, or stalk people to get their photos. Courts are particularly punitive about intrusive measures.

And never venture into Revenge Porn; a jilted lover posting nude images of his (yes, it’s almost always his) former partner without permission. In some states and countries, Revenge Porn is a crime.

Is your use commercial?

Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license, or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.

The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?

To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.

As for the plucky redhead, contact the original photographer and ask whether a release was obtained or is possible. If you use the image on your book cover without a release, it could cost you plenty.

Will your use imply any advocacy or endorsement?

Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.

Does your use of the image create a false impression?

Consider the context in which you are using the image. If you are writing a post about violent street gangs on a particular street and use an image of a young man walking down that street, you could be implying the young man is part of a gang. Even if you do not say the young man is a gang member, you could be defaming him by portraying him in a “false light.”

Similarly, don’t insert yourself into photos.

An attorney had her license suspended for pasting herself into dozens of celebrity photos as part of promoting her entertainment law practice. What was she thinking?

How high is the M.E. factor?

As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.

What about stock images?

If you license an image from one of the large stock image companies such as IStockPhoto.com, Dreamstime.com, or Getty Images, then they generally guarantee they have obtained all necessary releases, but only if you are paying for a “royalty-free” license. An “editorial license” is more limited and does not permit commercial use. So always opt for “royalty-free” licenses.

Bottom line: Photographs taken in public settings are almost always fair game. You may post and publish them for any purposes other than commercial or promotional or in any way that implies a connection or endorsement. 

Here’s a sample Release you are free to use.

I hereby release and grant to ______________________ (your name) (Photographer), and his or her assigns, licensees, and legal representatives, the irrevocable right to use any photographs of me taken by the Photographer, in all forms and media, whether now existing or not yet created, and in all manners, including composite or distorted representations, for advertising, trade, promotional, political, charitable, education, or any other lawful purposes. I hereby waive any right to inspect or approve the finished versions, including written copy that may be created in connection therewith. I have read this RELEASE AND CONSENT and am fully familiar with its contents.

Signed___________________________________________

Contact information ___________________________________

Date ___________, 20____

(If applicable) I am the parent or guardian of the minor named above and have the legal authority to execute the above release. I approve the foregoing and waive any rights in the premises.

Signed___________________________________________

Contact information ___________________________________

Date ___________, 20____

An earlier version of this post appeared on Nina Amir’s Write Fiction Now! Blog.

 

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70 responses to “How to Use Images of Real People Without Violating Privacy and Publicity Rights”

  1. Helen, this is great advice and I’ve also shared it with my mailing list. My one big take-away is to make sure images clearly indicate they were taken in a public setting. I’m going to remember that when I take pictures myself. Thank you.

  2. I use Canva for my images. At a cost of $1.00 per image I’m covered.

  3. Ann says:

    Helen, I bought your book and am finding it a great resource. The subject of this post is the reason I ordered the book. What about publishing a photo of a deceased individual taken in a public place printed not on the cover of a book but in the photo section of a non-fiction book? Context is positive, not defamatory and would not be used in marketing or promotion. Do I need to get permission from the deceased person’s heirs, or am I ok since photo was taken in a public place? Of course this is a separate issue from a permission release from the photographer.

    • You proposed use sounds very safe. The person was in a public place where there is no expectation of privacy. Your use sounds related to the expressive content of your book. Your not using for commercial purposes. I say, go for it.

  4. Dave Atchison says:

    Great info. Is there any legal boundaries – prohibitions against a local politician who takes a selfie with people at a public conference and then uses those photos on his campaign Facebook page and also prominently featured on campaign flyers and direct mailer postcards?

    • Technically yes. You should not use recognizable faces for political promotion without consent. A news report might be fine, but not a flyer. That being said, I suspect most politicians just plow ahead and use the images by assuming people have consented, particularly if it is apparent the people knew they were being photographed with the politician or at an event.

  5. Joe Muscat says:

    This is really interesting – thank you. I am helping someone self-publish his memoirs. He worked with some very famous actors in the last century – most of them are sadly deceased – and he has pictures of him with them which he wants to include in his book. He himself is not famous. Some photos are clearly studio publicity shots – and I am negotiating clearance fees, from a very limited budget, with the relevant companies for these. Others are publicity head shots signed with personal messages which I’m assuming to be OK? The photos I’m now worried about are more informal shots where he has no idea who the photographer was, but reading through this I am now more worried that he might be sued by the estate of the deceased actors. There is nothing derogatory written or shown about the actors in his book – quite the opposite – but should I try to make contact with the estates anyway? Some of the shots are taken on set and others in public places. He’s an old man and the book is going to be of very limited public interest but I would hate to encourage action which might lead to him getting in trouble. The plan is to publish the book as a hardback and as an e-book. Any advice gratefully received!

  6. Annette says:

    Hi, Helen, can I trace a photo of someone in a book, outline one (no facial features, hair, etc. in the trace), black and white, and use the trace that I created commercially without infringing on the person’s copyright?

    I recently bought your book, Self -publisher’s Legal Handbook, which is extremely helpful. Thanks for writing it.

    • Annette, Yes, up to a point. If the outline is highly original and distinctive and your outline is clearly a copy with nothing new and original, you could run into trouble. But if the outline is fairly generic, such as a head with shoulders, then you should be fine.

  7. Emilie says:

    Hello,it’s a very informative post.
    But can I crop the faces of identifiable people from a CC0 photo, to put it on my blog?
    Thanks

    • Be careful how you use any identifiable face. If you use it for advertising or purely commercial purposes, you may be violating the person’s right to control the commercial use of their image.

  8. Edwin Roman says:

    Vivian Maier was an American street photographer, who passed away in 2009. During her lifetime, Maier’s photographs were unknown and unpublished; many of her negatives were never printed. After the negatives were discovered and published by collectors, Maier’s photographs have been exhibited around the world. Of course, there are recognizable people in the photographs, which have been published in several books. How did that work?

  9. Doreen parkins says:

    will I be in legal jeopardy if I posted a photo I took in a public place but totally cropped the head off the person and just used the generic printed sweatshirt they’re wearing with a comment that does not include the person’s name?

  10. Anthony DeRosa says:

    I took an image of a man at a “leather” festival about 5 years ago. I did not know him. He was in the process of a sexual act of sorts I found interesting with a large crowd around him. I don’t know if he had the reasonable expectation of privacy or not, but I snapped a great pic of him. There is no chance whatsoever of finding him to get a release. Could the image be used in a magazine?

  11. Never thought about it…Thank you Helen.Quite interesting info. I’ve seen around a lots of examples when an image (photo or a collage)goes around,published on different sites and pages.The initial source sometime is one of the largest sources such as Adobe Stock photos, but do all of those people who have it posted have paid the rights?

    • Natalie, Probably not. Many people assume that it’s okay to copy anything on the internet. That’s not the case. Someone may own the copyright in the copied image and material. People should be more concerned about violating someone’s else copyright, even if it’s by mistake.

  12. Randy Kirk says:

    I want to use an image of a famous industrialist on the cover of a book. The picture is in wide use due to his fame. His company has asked us not to use it, but has not made any claim to copyright, only that they are concerned that it suggests an endorsement. Would a note inside the cover indicating that neither the person or his company has endorsed the book be enough to solve that issue?

    • Randy, Using an image of a recognizable person on your cover raises a number of issues. It could imply endorsement, so go out of your way to say the book is not endorsed by or affiliated with the person or his businesses. There is no bullet-proof solution. You have to think of it from the perspective of a buyer or reader — would he assume there is an endorsement or affiliation.
      Second, just because the company has not raised a copyright issue does not mean it goes away. For instance, if they hired an outside photographer to take the photo, they may not have the right to give you permission to use it since the photographer may still hold those rights. Just because an image is in wide use, you cannot assume it’s free to use.

  13. Nancy says:

    I am writing a book and in a particular chapter where I mention him, I want to use the photo image of a scientist who died in 1934. The photo looks like it would have been taken in the 1920’s. I see it used a lot on the internet. How do I find out if there is a copyright?

  14. Khor Han Heng says:

    Hi Helen,
    I am writing my first crime fiction (15,000= words at this stage) which mirrors to good extend real events that had happened here in Malaysia. My questions are:
    1. I set a murder to have been carried out right in front of the 5-star KL Hilton, with sufficient details of the hotel (landscaping, furniture in the lobby, lounge bar, music, etc). Do I need a release from the hotel?
    2. In my story, the fictional drug lord has a mistress named Amberine Chia, who is a fading super model. In Reality, there is a local super model Amber Chia who was super famous in the mid 1990’s to mid 2000’s. Am I damaging Amber’s reputation in anyway?
    3. When my fictional hero attempted to even the score with a corrupt government minister who organized the murder of his sister, I mirrored the story along a real case where a senior political leader was implicated in a murder of a foreigner in 2004. The politician was later cleared of all charges. How safe am I if I just change all the names?

  15. Mia says:

    Helen I am writing a non-fiction children’s book and want to add drawn pictures of famous people some of whom are deceased. Everything is in a positive light and informative only. Do I need a release or permission for this?

  16. Aaron says:

    Hi Helen. This article is really helpful.
    I would like to use a news personality’s image for a one off commercial venture. The image of the personality will not be used in a derogatory manner. I intend to use an image of him from Google Images. Not a photograph but a screenshot from his news program. Almost like a copy from a copy… Will I have to get permission first?

    • Yes. It does not matter if you can find the image from a internet search. Someone probably owns the copyright. And the news personality has the right to control all commercial uses of his image. Get permission.

  17. Linda Ewing says:

    Hi, I am writing my first book ever at age 66 on my life.I want to put my mom, great uncle,and aunt’s picture in book. All have passed away,but my aunt still has children that are alive. I hesitate on putting any pictures of my children and grandchildren due to possible lawsuits. Also I am not using their real names. Any suggestions? I need to cover my bases,also I am going to order your book. Thank you so much, Linda

  18. Scott says:

    Hi Helen, if I photographed random people in say…hospital, office, mall, street etc, and superimposed my own face (for example), would those images be safe for stock or commercial use?
    Thanks very much for your time and expertise!

    • Scott, It depends whether the original person is still recognizable. And since your intended use is commercial, it would be safer to get permission to use images of other people.

  19. mikaeli says:

    How can someone protect a commercial idea for a brand? Do you have any suggestions for being able to protect storyboard and tagline and the concept and idea itself for presentation purposes? I have a great idea and concept but wanted to get your opinion on this situation? Thank you.

    • Mikaeli, Ideas are tough to protect. If you feel your ideas are valuable, then consult with an intellectual property attorney about measures you can take. There is no one-size-fits-all answer.

  20. mikaeli says:

    Hi Helen, I am very interested in pitching a wonderful idea and concept to a big Brand for a commercial. I am also wanting to possibly use some images of people who are known or historical known in a storyboard. How do I protect my idea and concept in order to pitch to brand? Can I use pictures of the living or past if what they have made history and its a fact? Do I need to just present a NDA to Brand and for contract can I add in some specifics as for me receiving credit for original idea and concept of commercial as well as, if it is picked up I ask for to be paid when it runs much like actor receives in residuals besides their pay when they act or voice a commercial. Paid for commercial spot and receive residual pay? Thank you

  21. P.M.D says:

    Hello. I have a lot of pictures I took and some I inherited. I decided to make a photo booklet and sell it as a fundraiser. The number of people is thousands and thousands. Do I need permission to use their pictures in a booklet. Like a school yearbook.
    I have some wedding photos and I took them but bride doesn’t want them on social media, but she didn’t pay for them.
    Please give me your best advise

    • PMD, Your question is too broad to give a meaningful answer, but here’s a start. If you took the images, you own the copyright. So copyright is not an issue. So the question is whether using them in a book that is sold as a fundraiser considered a commercial purpose. And does it matter if each person is one of thousands? You should not use images of recognizable people for commercial purposes without consent, even if you own the copyright. T

  22. What about using a model release for one particular use, e.g., use in a specific book, rather than as the broad all inclusive use.

    Example: “I ______ give my permission to ____ for use in the book “The Photo Project” 100 copies of this book will be published in hardcopy and as an e-book and provided as gifts to supporters of the project.”

  23. Jason says:

    Helen,
    I’ve learned a few things today by reading your article, thank you. However, I’m still having trouble finding a answer to my question. I’m writing a book about my past online Dating experiences. I thought it might add value to the book by adding pictures of those and myself in the book. You mentioned to NOT use pictures of recognizable people. But what about average folks? May I use pictures I take of these individuals or pictures they send to me? No matter if it was taken in public or not? Lastly, what about pictures of this person and myself shot together? This book is a non-fiction book and the stories are real life true stories. So I was just wondering if you can help me solve this mystery for me please? I live in Texas. These pictures are not obscene or inappropriate by any means. Some pictures I am also in the picture. Some images I took with my phone and other images were taken with their phone and sent to me via text or email. Any advice or direction would be much appreciated.
    Thank you
    Jay

    • If you took the picture, and the other person did not have a sense of privacy when the picture was taken, then generally you may use it as part of your book, but don’t use the image on your cover or for advertising pruposes without getting permission from any recognizable person in the image. If someone else took the picture, then you don’t own the copyright in that photo. IN that case, it’s safest to get permission to use it.

  24. Kristýna says:

    Hello,

    I’ve been browsing through Google images, through all the websites… …, and I’ve found some nice pictures of someone, who shares her pictures on Instagram, participates in other social medias, in public.

    I’d like to use her picture(s) on other social media platform (Steam), but I have no contact info to ask for her permission.
    I don’t care about money, I’d use it just as a design.
    I also don’t have a problem with sharing the URL, where I’ve found the image, adding, that I don’t own the picture, etc… … to it.

    The thing is, there is surely a copyright, but will it be OK to use her image then? I mean, the more viewers she’ll have, the more money she’ll get.
    So, even without asking, we’ll both be happy.

    What should I do?
    – Should I ask for the permission?
    – If I wouldn’t ask for the permission, could something bad happen to me (like, to pay X money to her) for using her picture(s) without permission(s)?
    I am about to use only one picture.

    Thank you for your time.
    I’d like to let you know, that I really appreciate your answer.

  25. CRB says:

    I am writing a sports book, and would like to include some team photos. I am in them along with children who participated on the teams. They are typical group photos. Do I need permission from each kid or parent to include them in the book?

    • Only if you are using the photo as a key piece of advertising or on the book cover. Otherwise, since there was no expectation of privacy in a staged, group shot, you don’t need permission.

  26. Melinda Burriola says:

    I am opening a restaurant. Can I use hang family photos that have siblings or other people in them without violating any laws?

  27. Thierry says:

    I hired a guy to pose nude for me. I have emails to substantiate that he was hired. Initially, I hired him as “practice” but since then, I have decided to put together a coffee table book of male artistic nudes. Can I use these photos and add them to my book?

    • Thierry, It depends on what kind of release you obtained from the model. You could have a problem if he agreed to pose for you only and did not agree that you could publish those photos. It would be better to get a release from the model.

  28. Adam Harris says:

    I collect photos that I find at garage and estate sales of people, places and things. I post them to social media with with made up captions and have thought about putting them together in a book as my following grows. Would it be legal to sell such a thing? I’m not really looking to make a profit, just want to cover my costs to produce. Pictures range from the 1920’s to the 1980’s and are typically vernacular amateur snapshots. Examples on Instagram @myfoundphotos

    • Adam, You’d have to consider the copyright issues for each image. It doesn’t make much difference it you are not expecting to make a profit.
      When you buy a photo, you are buying the physical copy of the photo, not the copyright or the right to publish it.

  29. Denise says:

    Thanks for considering all the situations in this feed. I have a question about using a photo in artwork. I took a picture of someone sleeping on a bench in public. I used that image in a painting. Even if the painting is very realistic I would think selling that painting would be ok because I own the photo and the person was on a busy street. The buildings in the background might be recognizable because I want it to be clear that the subject of the painting is “homeless young man sleeps with dog in New Orleans” I did slip $5 into the guy’s backpack just to anonymously thank him for “posing” but that’s neither here nor there. There are a lot of “regulars” among the homeless in the French Quarter so this guy could be distinguished by his dog and his hair, etc. Up to this point, it’s all about the art… until I sell it or use it for promotion.
    1. If I sell the painting or donate it and someone recognized him, is there any potential for a legitimate claim?
    2. What if I sell the photo to a publisher? Same question.
    3. What if I promote my paintings using the photos that I took?
    Thanks!

    • Denise, If you took the photo in a public place and use it as art, such as a painting or art print, then there is little risk for a claim. It might be different if you used the photo for purely commercial reasons such as as advertisement for shampoo or cleaning product.

  30. Zulio says:

    Hi helen, what abaout the superimposed images for example a face with different (other person) eyes, nose and lips. Can it be use in commercial.

    • If the person in the image is recognizable, then you’ll need permission to use the image in an advertisement. Whenever the use is for advertising or promotion, it’s best to get permission.

  31. PMB says:

    Helen,

    Thanks for addressing this subject. I take candid photographs of people in public places. I know that using the images to promote a product/politician/cause is commercial use. But if I exhibit and sell prints of the images in art galleries or art books as art, in which case the images ARE the product, is that considered commercial use subject to the same restrictions?

    Second, what is the standard for “recognizable?” If only the person himself would recognize his image in the photo, but no one else, would legal restrictions apply? If the face is not shown, can clothing, tattoos or scars make someone “recognizable?”

    Thanks!

    • Generally, selling the photograph as art is not considered commercial; using it as part of an advertisement is. And in this case, the standard is recognizable to the person themselves. If they will recognize themselves, try to get a release.

  32. zylstra says:

    Not sure I’d call that look plucky … sultry maybe, but not plucky.

  33. Sharon Cosgrove says:

    Is a person by law able to take an old school picture of a 14 year old child and have that childs picture imposed in a family portrait if that child is not biologically yours? Do you need the consent of the parent and/or photographer? What if the child was deceased and the surviving parent was not asked or has not given parental consent to use this childs photo?

    • Sharon, It depends on how you plan to use the altered image. Is it just for personal use or are you going to publish it in some way? Will you used the altered image for advertising purposes? If your use will be for anything that involves publishing or advertising, then you need to consider the copyright owned by the photographer as well as the privacy rights of the child. You are throwing out too many hypothetical scenarios for me to provide a single answer.

  34. Kristen Alger says:

    Helen,
    I am writing a humorous memoir. I have changed names in any funny story that might still embarrass someone. I’ve chosen to keep family names as they add so much to the story (Ruby Jewel, Ricky Dale, etc.). All last names have been omitted but small town stories will make it easy to identify the person in the story. I have also used photos that I have taken or that I have permission to use (wedding photos) from the photographer. These photos appear inside the book only and NONE appear on the cover. Editing is done but now I’m getting nervous. There is not a thing that is insulting. Anything really embarrassing has fictional names. Do you see any issue with continuing on to publication?

  35. Sandra says:

    Hi Helen,
    I am writing a book about our school’s process of change. I am a teacher and hope to use pictures of school events where you can see groups of students but there is no identifying information. Do I need parents’ permission? I am thinking I only need my principal’s permission? Am I right?

    • Sandra, If you were not a teacher at the school, and the events were public and the students had no reasonable expectation of privacy, and your use not for advertising and promotion, you should be fine. But because you are a teacher at the school and they may have policies about such things, it would be safer to get the school’s permission.

  36. Sonnia says:

    I had just recently broke up from a very unsafe and poisonous relationship. Really the man can’t be trusted. Can I blackout his eyes in a photo with a comment and not be in trouble from it?

  37. Sonniah says:

    I live in the state of Utah.

  38. AMH says:

    Hi Helen,

    Thanks for taking the time to answer so many specific questions. I’m still unclear on what makes something commercial/promotional. I work for an independent retailer that doubles as a unofficial community space and institution of our city. I take many photos at public events that I intend to use on content pages of our website. Sometimes this is a posed shot and sometimes it’s just people attending an event.

    My understanding is that a blog article or a informative non-product page is not promotional. It is free content. Or is everything on our site considered commercial use because at the end of the day, we are a for-profit entity? Thanks!

    • Commercial and promotion is usually narrowly construed to mean an advertisement or packaging. Or use in a way that implies an endorsement. Since I don’t know enough about the context, I can’t give a definitive answer for your situation. You would need to consult an attorney to apply the law to your particular situation.

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