B. When to Use a Release

Whether you need to obtain a release depends on why you want to use a person's name or image. If your use is for commercial purposes --for example, using a person's photo in an advertisement --you should acquire a release. If your use is for informational purposes such as a news article, a release is not required. However, even if a release is not required, you should be careful that your use does not defame or invade the privacy of the individual. If there's any potential that your use might violate these laws, a release will provide legal protection. Sorting out these differences can be confusing, and we provide some examples in the sections below. When in doubt, however, we recommend that you obtain a signed release.

1. Informational Uses

A release is not needed to use a person's name or image for informational purposes. An informational (or "editorial") purpose is anything that informs, educates or expresses opinions protected under the First Amendment of the United States Constitution (protecting freedom of speech and of the press). An informational use would include using a person's name or photograph in a newspaper or magazine article, an educational program, film, nonfiction book, or informational webzine (a magazine published on the World Wide Web).

If a person's name or image is used in an informational publication, that name or image may be used in incidental advertising for the publication. For example, you may state in an advertisement, "Featuring an interview with Johnny Depp. " However, advertisements posing as informational publications require a release.

Even if your use is informational, a release may be required if the person's name or image is used in a defamatory manner or invades the person's privacy. It may seem odd to seek a release for a use that may defame a person or invade privacy. After all, why would anyone sign a release for a use that would create a false impression? Such releases are usually used in cases where a model or actor is posing to illustrate an article, such as "The Horror of Date Rape. "

2. Commercial Uses

A release is needed for the commercial use of a person's name or image. A "commercial use" occurs when selling or endorsing a product or service. For example, if your website offers haircutting products and you feature pictures of people using the products, you would need a release from the people in the photos. A release is not required if the person cannot be recognized in the photo, for example, if the photo only includes the person's hands. Several decades ago, the failure to obtain the release would have led to an invasion of privacy lawsuit. However, the "right of publicity" has now become the claim de jour for those whose name or image is used for commercial purposes.

3. 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).)

4. 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 informational.

5. 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.

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