Pixiq

Usually because no one bothered to get a model release, some photographers (and even some clients) attempt to “create” an editorial use. This usually occurs after the model has notified the user by legal counsel that the image was used without their client’s consent. At this point, like Houdini, the photographer, ad agency, and/or client tries to escape. They will claim that the ad was not really an ad, and so it really does not require a written model release. Amorphous terms such as “open letters,” “public service announcements,” or “issue advertising” are used to describe the ads in an effort to skirt the laws requiring model releases.

Under New York law, a message is for “advertising purposes” if it solicits patronage of a particular product or service. For example, if an advertisement explicitly solicits patronage of medical, residential, psychiatric, mental health, and addiction services for fees (and health insurance covered fees), the fact that it also serves a secondary public or beneficial purpose like advocating the treatment of drug addiction, is not relevant to the fact that the piece is still an advertisement requiring a written model release.

Sometimes the background facts concerning the creation of the ad are key. Say an ad agency licensed an image from a stock house for a fee, retouched that image, wrote advertising copy, prepared the advertisement, and had it inserted into countless publications and websites on behalf of the agency’s paying clients — all of whom manufactured drugs, sold testing equipment, or treated diabetics. A claim that the resulting ad is not an ad but rather a newsworthy "public service announcement" or "open letter" not requiring a model release, would fail. The primary purpose was to direct, steer, and cause viewers to pay money and/or attention to one or more of the advertisers for their commercial benefit. If someone seeing the ad was made curious enough to get tested and discovered he/she was a diabetic, that’s great, but it’s still a byproduct and not the primary purpose of the ad.

To get protection under the newsworthiness or editorial use exception to the need for a written release, the image must bear a “real relationship” to the subject matter of the editorial in which it is used. The story cannot be an advertisement in disguise. An advertisement, even if it may have some secondary newsworthy value, is still an advertisement within the meaning of the law. Otherwise one could argue that any pre-existing advertisement for any item can be termed “newsworthy” if it, for example, contains a celebrity, advertises a “green” product, an electric car, a cure for a disease, and so on. If the primary purpose of an ad is to drive dollars and attention to those whose livelihoods are dependent thereon, it does not qualify as exempt from the requirements of the New York law.

An ad may become “newsworthy” if litigation was commenced concerning its existence. Let's say that a sexually explicit billboard is put up in Times Square for a clothing company or a charity seeking donations. The user’s profit or not-for-profit status is irrelevant to the issue of what the ad’s “primary purpose” is. Whether the image was for commercial and trade benefit as its primary purpose is the key for model release purposes. Can a newspaper run a photo on the public’s attempt to remove the billboard without obtaining a model release from the person portrayed on the billboard? Sure. The newsworthy exception has a long and storied history and exists so that newspapers, magazines, and the like can cover the news and stories of genuine public interest. Can the model sue the clothing company or charity if the image was used on that billboard without a written model release? You betcha.

Most exceptions to the model release requirements of state laws are fairly obvious, in that an image accompanying a magazine piece or news story of public interest does not generally require a release. Misuse of an image in such a publication could still lead to a claim in libel. Such claims arise when the image is used to falsely portray someone without consent. So for example, a story on rampant heroin abuse by young mothers utilizes the image of an innocent public citizen/mom playing with her kids in the park. Without consent of the subject, if the photo falsely portrays the subject as a drug abuser, pedophile, etc., then the fact that it is used in a newsworthy article becomes largely irrelevant. Mom has herself a great lawsuit and her lawyer can start shopping for a new car.

A classic example of the more typical scenario is that of Arrington v. N.Y. Times Co. That case involved an image of a young, African-American financial analyst in a business suit walking on a Manhattan street. The photo was utilized in an article in The New York Times entitled “The Black Middle Class: Making It.” That image clearly bore a real relationship, in that the image was of an actual young African-American financial analyst, and the article was about exactly that demographic. Brooks Brothers would need a written release if it wanted to use that image to sell suits. The New York Times did not need a written release or the permission of the subject.

St. Patrick’s Day parade patrons dressed in traditional Irish garb, drinking Budweiser beer, utilized in a news story about the last of the Irish immigrants — no release needed. Use of that same image by Budweiser without a release? Verboten. The key is simply whether the relationship between the news story and the alleged violative image is fairly obvious.