Legal Hotline: Photograph Release

  • Aug 03, 2017

Melissa Melewsky, Media Law Counsel

Q:  Do I need a signed release before I can publish a photo in a newspaper or online?  

Note: The following response relates only to photographs taken and used in a news/editorial setting. You should always obtain written consent before using pictures of anyone for commercial or advertising purposes. 

A: While a signed release is not always necessary, it is advisable to obtain written consent from your subjects whenever you can. Although, as a general rule, you should be able to publish photographs taken in a public place without obtaining express permission from your subjects, there are times when even this could lead to a lawsuit, and many places that you may think of as “public” are not. For example, a shopping mall or restaurant is not “public” property.

The primary legal concerns relating to the use of photographs are defamation and invasion of privacy. To avoid defamation claims, you must ensure that your photographs accurately reflect or relate to the news articles that they accompany. For example, a jury found that the New York Times defamed a pharmacy, by using a picture of that pharmacy’s website as part of a story warning readers about “unscrupulous” online pharmacies.

Invasion of privacy claims raise additional issues. Many of these claims involve the publication of private information about someone, where the publication would embarrass a reasonable person and does not involve a matter of public interest or concern. Other invasion of privacy claims arise when a picture or story places a person in a “false light” before the public in a manner that is highly offensive. A “false light” claim can arise when a picture or its accompanying text creates a false impression about its subject. For example, one court found that four black men (each employed) could maintain a “false light” claim where a photograph of them standing on a street corner was used to illustrate a story about unemployment and captioned, "For young blacks who are unemployed, many empty hours are spent hanging out on city streets."

Depending upon the subject matter of a particular picture, or even where it was taken, there is some potential for an invasion of privacy claim. Because “consent” is a defense to these claims, it is often wise to obtain a written release from the subjects of your photographs. When photographing minors, you should obtain a release signed by a parent. Although oral consent does not offer as much protection as a written document, it is certainly better than nothing.

Obviously, there are times when it is not possible or practical to obtain written (or even oral) consent from your subjects. In those instances, you should consider the setting and subject matter of your photographs in deciding how to proceed. Does the picture relate to a matter of public interest or concern? Does it depict a matter that has traditionally been considered to be “private”? Would a reasonable person be offended by the contents of the picture.

For example, a paper should be free to publish most photographs of athletes involved in sporting events, or pictures of criminal defendants walking into a courthouse, without obtaining express consent. Of course, if a picture of a student athlete happens to capture a highly embarrassing moment (you can use your imagination), there could be some risks involved in publishing it.

You can review a model “release” form here. PNA recommends that news media companies consult their private attorney before putting any agreement into use.

As always, this is not intended to be, nor should it be construed as, legal advice.  Please contact your newspaper’s private attorney or call the Legal Hotline at (717) 703-3080 with questions.

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