In the spirit of my recent accouncement of my latest book on
model releases, I thought it apropos to post a blog entry I have
had in the queue for a while: whether non-profit organizations are immune
from the need for model releases for whatever they publish: promotions,
newsletters, fund-raisers, etc. At the heart of this question is what is
meant by "commercial vs. non-commercial use."
It started when I read a blog entry from a site that caters to
non-profits. It had this text:
"...if you are publishing a photo for information or
educational purposes, not commercial purposes like product advertising,
you can typically print it without a model release. The majority of
non-profit publications fall into this category."
The premise here is erroneous: that non-profits fall into the category of
"non-commercial users." This is not the case, and this misunderstanding
lies in what is meant by "commercial use." Most people associate this
expression with advertising and promotion of for-profit products and
services. Yet, those are not the only uses covered by the law
surrounding privacy and publicity laws. And it's those laws that stipulate
whether consent is required from a person to publish a photo of them. (A
model release is what grants that consent.)
These laws are not based on "commerce" as people traditionally think of
it, but around how people are represented, regardless of the kind of
business the publisher (user of the photo) happens to be. Whether a
person's likeness is being used to advance a cause, an agenda, or any
number of things, these are really the core of the intent of the law.
Federal statutes exist that protect people's rights of publicity, and
about half the states in the US have additional statutes that go beyond
those basic principles. A good example of this is found in the California
Code 3344, which can be viewed here.
You'll note that there is no text in any of this language that talks about
whether money is made, or the status of the publisher of the image, such
as whether it is a for-profit or non-profit. This is not what is meant by
"commercial"... Instead, it really refers to "in the course of business,"
and to differentiate the use from news reporting and other uses protected
by the First Amendment.
For purposes of model releases, it's the use of the image that
matters, and non-profits are businesses, like any other: they have staff,
letterhead, advertising and marketing budgets. This is all part of "normal
course of business," otherwise known as "commerce." Accordingly, when they
publish photos of people, there may be a need for model releases that
applies no differently than for for-profit companies.
Further supporting the notion that the law is not intended to exempt
non-profits is the fact that the statute does not define what "services"
are. A non-profit that delivers food to the homeless is providing a
service, as is a non-profit that advocates humane treatment of animals, or
that provides assistance to war veterans, or religious groups that teach
reading, or HIV/AIDS groups that provide support services, or gay and
lesbian organizations, and so on. If the assumption made by the quote on
the non-profit blog mentioned above were true, it would be that these
organizations would be exempt from requiring a release from using a photo
of someone because they are non-profits. As you can imagine, any one of
these organizations may or may not be supported by everyone in the
country, so could it really be that they could use photos of anyone they
wanted for any reason, without their consent? That's an easy "no." Imagine
how upset you would be if a non-profit that advocated a cause you don't
support were to use a photo of you in an ad.
This is what federal and state statutes are there for: to prevent this
sort of unfettered use of people's likenesses. Nowhere does any statute
state whether "money" as anything to do with any of these transactions or
companies.
But, don't let this reality jolt make you think that all non-profits have
to get releases for all photos they use. And since non-profits are
treated identically to for-profits, it may even be more surprising to
learn that for-profit companies don't necessarily need releases for all
the photos they use in ads either. And this potential lack of a
need for a release lies in an infrequently-read subsection (e) of the same
California Code 3344, which reads:
The use of a (...) photograph, or likeness in a commercial
medium shall not constitute a use for which consent is required (...)
solely because the material containing such use is commercially sponsored
or contains paid advertising. Rather it shall be a question of fact
whether or not the photograph or likeness was so directly connected with
the commercial sponsorship (...) as to constitute a use for which consent
is required (...)
In other words, the person has to look like they are somehow advocates or
sponsors of the underlying product or service. In the simplest case, just
because a website, magazine, newspaper, or newsletter may have ads in it
does not suddenly trigger the need for a release from the people who may
happen to be in photos on the same page. Just having a photo of someone is
not the test -- it's whether there is an implied association (or
affiliation) between the person/people in the photo and the "user"
(publisher) of the photo, or the advertiser. (Hint: you see ads on the
same page as articles in newspapers. That's no different than ads on a web
page that happens to have editorial content and photos of people. Readers
know the difference between an ad and an article, at least in most
mainstream publications.)
Obviously, this is highly subjective, as well as highly-dependent on the
given photo and the given use. All of this is entirely (and
somewhat arbitrarily) up to the whims and opinions of judges. Not that
there's anything wrong with that. But, it's this lack of specificity that
allows people's assumptions to lead them astray.
In effect, this new understanding of subsection (e) introduces a brand new
view that you probably didn't expect: just because someone is recognizable
in a photo and that photo is used in an ad, it does not necessarily
trigger the need for a release. Subsection (e) states that the person in
the photo must appear to be "directly connected with the sponsorship." If
you were to have a close-up photo of a person looking directly into the
camera with text over his face saying, "I have AIDS," the implied between
the person in the photo and the organization is pretty strong. However, a
photo of a local band that happened to be playing at an outdoor event that
happened to benefit the non-profit could show up in a newsletter to
members with a far less likely need for a release. Is there an implied
association? Perhaps, but it's far more benign and less likely to be
objectionable to the band members (or they wouldn't have played the gig in
the first place).
Between those two endpoints is an infinitely large number of possibilities
for how someone might look as to determine whether they are "directly
connected" to the published use of the photo, and whether that person
would be likely to object.
And it's that analysis that leads us to real-world events and how they
often don't reflect academic discussion, or even the laws themselves. This
is why most non-profits don't think or care about having releases: most of
the time, nothing happens and no one cares. But it's still important to
mention, because the law is the law, after all.
In conclusion, despite the fact that this was about non-profits, it turns
out that they aren't different than any other organization. What this
topic is really about is what is meant by "commercial use." It's not what
people think -- that money is made or has changed hands because someone's
likeness was used. Privacy and publicity laws are written to address
people's rights as to how they are represented, and whom they can be
implicitly associated with, regardless of whether money plays a role. If a
company violates those rights by publishing an unreleased photo that can
imply an association, _then_ it becomes all about money. Theirs. Labels: analysis,
commerce,
commercial use, dan
heller, model
release, non-profits
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