The requirement for releases is an area of law that is controversial and unsettled among legal and photography professionals. Some believe that because of the ambiguity in the law, releases are required if publication is intended, the “better safe than sorry” camp. At the other camp are those who contend that no release is required if the intent behind publishing a photograph is for news reporting, public information or education, ie the ‘fair dealing’ provisions allow for the publication. The difficulty is that it is not always easy to draw the fine line between what is newsworthy and what is not.
Photographs of Individuals
The author and publisher in deciding whether to publish a photograph of an individual or group of individuals must be aware of the dangers that arise from any unauthorised use that relates to an individual’s right, whether it is a right to privacy (a right which is as yet not clear if it exists) or a right to publicity. Individuals who lead public lives, such as public officials and celebrities, have a broader right to control the manner in which they are publicised. A well known Singapore case in point was when a restaurant used Mr Chiam See Tong’s photograph for commercial purposes. The High Court held that the use of the photographs in advertisements were defamatory of Mr Chiam as it suggested that he had taken advantage of his position as a Member of Parliament for financial gain.
Guidelines when Publishing Photographs of Individuals
- Because there are many nuances to the law, it is advisable to always obtain a written release from any individual who would be recognised in a photograph.
- Obtain a release even if the individual’s image is initially intended for a newsworthy purpose. You may want to use the photograph for other trade or commercial uses.
- If the individual is a minor, you will need parental or guardian consent.
- Make certain you caption the photograph correctly. In another Singapore case, a newspaper by juxta-positioning the photograph of a well-known lawyer next to a criminal with the caption referring to the criminal had to defend against a defamation suit.
- When editing or cropping a photograph, do not alter the context in which the photograph was taken. It can give rise to a mis-representation or mis-understanding as in the ‘lawyer-next-to-a-criminal’ example above.
- If the decision is to use a photograph without a release, make certain that the photograph was not taken while doing a wrongful act, as an example when trespassing on private property.
- Releases are generally not required if the people in the photograph are incidental to the main subject (which is in a public place) of the photograph. An example would be a photograph of a street scene in Orchard Road that was used to illustrate a book, even though many people may be identifiable in the photograph.
Photographs of Property
Although different laws apply to photographs of properties, some of them may prevent or restrict the unauthorised use of the photograph. Such laws include the laws concerning contract, trademark, copyright and trespass.
In general (however there are numerous exceptions – most of which even lawyers have difficulty in understanding), if a photograph of private property is taken while the photographer is on property accessible to the public then it is permissible to publish that photograph without permission from the owner of the property.
However, as stated earlier there are exceptions where it becomes necessary or advisable to seek the owner’s permission. These include a photograph of:
- artwork displayed in a museum, gallery or other location;
- a well-recognised product, where the manufacturer has a history of resorting to litigation to prevent unauthorised commercial uses of photographs containing their products;
- a building where the building design is protected by a trademark registration;
- interiors of private buildings; and
- personal property, such as their clothing or jewelry, that could identify an individual.
A publishing contract usually contain a “permission clause” to ensure that the author is required to provide the publisher with written permission to use any materials owned by another party. However, the scope of this clause will usually only relate to copyrighted material and is often not broad enough to require that the author obtains permission to use a photograph that could interfere with an individual’s right to privacy and publicity.
If there are specific issues with photographs, the permission clause in the publishing contract should be reviewed to make clear that the author is required to obtain written permission to publish a photograph when such use could infringe any proprietary right or interfere with an individual’s privacy or publicity rights.
The permission clause should also be supported with ” representations and warranties” from the author that the photograph does not contain libelous or obscene material or that the publication of such photograph does not interfere with any copyright, trademark, privacy, publicity or proprietary right of another party. An “indemnity clause” should also be included in the publishing contract providing that in the event of a claim, action or proceeding based upon an alleged violation of the author’s representations or warranties that the publisher will be held harmless.
Publishers should ascertain that the author has obtained written permission to publish a photograph. A publisher should only rely on the indemnity clause as an additional layer of protection since it will be of little value if the author does not have substantial assets to back the indemnity. It is also advisable for the publisher to attach a sample of a pre-approved permission form to the publishing contract for the author to use.
Like many things in life, there are no guarantees that the publisher of a photograph will not be sued, especially if the photograph is used for commercial purposes. Unfortunately, the only ‘sure-fire’ ‘almost risk free’ way is by obtaining a written release from the person(s) or owner(s) of property that appears in a photograph.