Wednesday, January 21, 2009

Yearbook Photo Release Issues

Dear Rich: I have a question. A very good friend of mine had senior pictures taken of her daughter (we'll call her "D") with a professional photographer. He took some pictures of D that are not tasteful and do not portray D in a light that she wants on public display. My friend has expressed this to the photographer multiple times. The photographer bought a yearbook advertisement and it had one of the unflattering pictures in the ad. My friend and her family are upset and concerned that the photographer will use these pictures in other forms of advertising such as newspapers or in a mall display. Do they have any legal recourse if the photographer refuses to honor their wishes? I'm so glad you asked. The short answer to your question is, "Possibly, but it depends on the paperwork."

Under copyright law, the photographer controls the right to reproduce the image unless a contract was made that assigned those rights to D (or her parents). However, D may have some control over the use of her name or image when it's used to sell products or services (based on a legal principle known as "the right of publicity"). Unfortunately, the right of publicity differs from state to state and it's not always clear who -- for example, celebrities or non-celebrities -- can assert rights. 
Regardless of your state's law, if D is over 18 and signed a typical photographer's release, it may be difficult to stop the ads. If D is under 18 and signed a release, that release is "voidable," meaning that D can terminate the rights granted (although that will be more difficult if D's parents or legal guardians also signed the release on behalf of D). In summary, enforcing the right of publicity is tricky and will likely require retaining an attorney to review all these issues.    
The Dear Rich staff is unsure about what you mean by "unflattering," since many yearbook photos tend to haunt subjects, particularly those who have gone on to greater things. If the picture is upsetting for reasons that may be exploitive or illegal, then D should contact an attorney to determine if defamationinvasion of privacy, or other more serious charges should be considered.