A Question about Libel & Privacy Laws

March 8, 2008 9:52 AM

Does it become legal to use a person's image without their consent or knowledge, as long as you put a black bar over their eyes and don't use their real name? I cannot afford to talk to a lawyer about this.

Alternately, does stop being an invasion of privacy if it's a drawing or a caricature? How about a drawing or caricature with a black bar over the eyes?

posted by interrobang to law & government (16 comments total)

There is not enough information here to answer this question.

Who owns the copyright to the image? Where was it taken?

Will anyone be able to identify the person from this image? Say, people who were there when the picture was taken? Or the person's mother?

In what context will you be using this? You mention libel and biography. Are you going to post potentially libelous material about an unnamed person and juxtapose it with this image? That sounds like a bad idea.
posted by grouse at 10:01 AM on March 8, 2008

It would probably depend on the context and who the person was. Celebrities have lower expectations of privacy than ordinary citizens, for example. So basically, who created the image, whats the status of the individual, and what do you plan to use it for, are the answers that'd probably help folks answer your question.
posted by Atreides at 10:03 AM on March 8, 2008

Doh' what Grouse said.
posted by Atreides at 10:03 AM on March 8, 2008

I would like to write some biographies of people that I knew in the past; I'm mostly talking about using either pictures that I took, made into drawings, or pictures from yearbooks, made into drawings. The intention is not libel, or to badmouth people--or at least, if I were to badmouth someone, I would not use drawings of them. No one's real name would be used, nor would be there be specific place-details, such as names of schools, places of work, and so on.

In most cases, there is no way I could contact the people to ask if I could use their images. I realize fully how this could become a bad idea.
posted by interrobang at 10:09 AM on March 8, 2008

If you took somebody's picture, the copyright lies with you, the photographer. You don't generally need the consent of the people who are the subject-matter of the picture to publish the photo. Ditto for a drawing made from a picture - you, the artist, have the rights to the drawing.

Disclaimer: IANAL.
posted by gwenzel at 10:31 AM on March 8, 2008

I just saw a creative way of using other people's images without consent or identifying the person in the image. Can also be useful in family photographs to deal with ex-spouses and parted "significant others" . The ubiquitous "smiley face" in bight yellow planted in place of the non consenting, out of favor , ex, etc... This totally get around the "release" and "for profit" issues it seems. IANYL
posted by Agamenticus at 11:07 AM on March 8, 2008

Man, this is far from the advice I normally give, but I would stay away from this project if I were you. I think, legally, you'd probably end up coming out okay, but you'd be walking some pretty fine lines. If you don't have the money to consult with a lawyer about this on an ongoing basis, it may be more trouble than it's worth.
I say this as someone who is willing to push pretty hard on issues of fair use, right of publicity, etc -- but this is a weird and difficult set of facts, and there are some issues that are not at all well-settled in the courts, so the results are not predictable.
Also, just because you own the copyright in something does not mean you can publish it willy-nilly; if it invades someone else's right of privacy or publicity, they have the right to stop you publishing it.
posted by katemonster at 11:10 AM on March 8, 2008

Since they are photos you own, it becomes less a question of *if* you can use them and more a question of *how* - the photos have little to do with libel - it's what context and what type of text you use in conjunction with the (edited or not) photos.

Generally when authors write about topics involving real people (friends or enemies) they change the names and some of the minor details (adding vagueness to dates, etc) in order to protect themselves and their subject. I suggest you consider doing the same.
posted by wfrgms at 11:46 AM on March 8, 2008

in medical publishing this happens quite frequently. picture of a patient with a cool derm issue on his cheek? from 20 years ago? black bar the eyes and print away.

ideally we like to get patient consent forms so we can print without the black bar, but that isn't always possible.

so yes, it seems like it's fine. however, i think if you're writing a biography of joe, and then include a picture of a guy with a black bar over the eyes, almost anyone is going to know that's a picture of joe. so....probably a bad idea.
posted by misanthropicsarah at 11:47 AM on March 8, 2008

All right, this is basically what I suspected. Thanks, everyone!
posted by interrobang at 12:24 PM on March 8, 2008

As a general rule, if you can't afford to talk to a lawyer about questionable behavior, you can't afford the risk of not talking to one.
posted by toomuchpete at 1:47 PM on March 8, 2008 [1 favorite has favorites]

Cover your ass when writing about them by fictionalizing some detail--Anne Lammot suggests things like giving the character based on your ex a teeny-tiny penis. Who's going to stand up in court and say "Mr. Microweenie is clearly me, your honor"?
posted by OlderThanTOS at 3:02 PM on March 8, 2008

You don't generally need the consent of the people who are the subject-matter of the picture to publish the photo.

Check out this journalist's primer on the right to privacy.

In my experience with journalism, there is an important caveat to this. If you take the photos in a private location, you should not use them without obtaining consent; it could be considered 'intrustion.' They have a reasonable expectation of privacy if they are in a place not traditionally open to the entire public (this could mean a restaurant, a beach club, a resort, a private business at times, a private home). On a public street or at a public event, it is theoretically all right. Using them for libelous purposes is never all right, but in that case, the photo itself would not be libel, it would help constitute the case for libel by satisfying one of the four major conditions for proof of libel - that is, that the person's identity can be discerned.
posted by Miko at 6:56 PM on March 8, 2008

intrusion. typo, sorry.
posted by Miko at 6:56 PM on March 8, 2008

P.S.: you can find plenty of helpful legal pages by Googling things like "photo +use +consent" and "+journalism +law"
posted by Miko at 6:57 PM on March 8, 2008

State law might matter here as well (assuming you are worried about American law). I know New York has stricter privacy torts than other states, although I am not an expert in this area.
posted by Falconetti at 10:23 PM on March 8, 2008