Taking Pictures of your Residents? Think Twice.
RANDALL PENTIUK

If you are thinking about using pictures of your cooperative residents in a photography contest or any sort of fundraiser, think twice. While it is unlikely that a court would allow a suit alleging misappropriation of a resident’s name and likeness in order to promote products or services, or make money from the commercial use of their identity, your cooperative could be subject to a lawsuit. Michigan is the only Sixth Circuit State without a “right of publicity” statute, and the only one that does not provide post-mortem right of publicity protection. In most states, you can be sued for using someone else’s name, likeness or other personal attributes without permission for an exploitive purpose. As a general rule, you should never use someone’s name or photograph in advertising or promotion of your website or blog without permission.

There are two kinds of claims. The first involves an invasion of privacy through misappropriation of name or likeness, and the second involves the violation of the right of publicity (the right of a person to control and make money from the commercial use of his or her identity.

Elements of Misappropriation & Violation of the Right of Publicity:
1. Use of a protected attribute

  1. “Likeness” refers to a visual image of the Plaintiff, whether in a photograph, drawing, caricature, or other visual presentation.
  2. For an exploitative purpose
  3. Misappropriation: P must show D used name/likeness in advertising or promoting products or services. Can also be held liable for non-commercial use if D exploits the P’s identity for D’s benefit.
  4. Right of publicity: right of a person to control and make money from the commercial use of his or her identity. Plaintiff must show Defendant used their name/likeness for a commercial purpose such as advertising, promoting goods or services, placing name/likeness on/in products/services you sell to the public.
  5. No consent
  6. Consent is a complete defense to legal claim for misappropriation or violation of the right of publicity.

Children cannot consent on their own behalf. When using the name or likeness of a minor, you should seek consent from the minor’s parent. People can revoke consent anytime before the use of name/photograph takes place.

Exceptions
1. News and Commentary

  1. Generally cannot be held liable for using someone’s name, likeness, or other personal attributes in connection with reporting or commenting on matters of public interest. (Courts generally take broad view of “news” and “commentary”, which encompasses both print and online sources such as internet bulletin boards, unauthorized biographies, magazine/TV reports, fundraising letter, magazine article, and books)

 Limitation: Use of P’s name/likeness must bear a reasonable relationship to content of news/commentary presented, or may be liable for creating an “advertisement in disguise”.

Michigan Case Law History:
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (Mich. Ct. App. 1983).
The right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity.

Janda v. Riley-Meggs Industries, Inc., 764 F. Supp. 1223 (1991).
Where an orthopedic surgeon gained a significant reputation because of his research on prevention of softball injuries by use of a detachable base; and subsequently his research was cited by a softball base manufacturer and brought suit. The Court held in favor of the surgeon and extended the right of publicity by using those research results to increase sales of the softball bases.

Ruffin-Steinback v. dePasse, 267 F.3d 457 (2001)
Miniseries depicted the lives of the Temptations’ original members, and none of the plaintiffs were compensated or consented to the use of their likeness. This case also addressed the question of whether depicting a story where some of the events are fictionalized constituted a violation of the right of publicity. The court held for the Defendant; and said that the right of publicity does not prohibit depictions of a person’s life story.

Parks v. LaFace Records, 329 F.3d 437 (2001).
Rosa Parks brought suit against hip hop group “Outkast” for using her name as the title of a song. Court used balancing test to analyze publicity appropriation v. free expression. The district court held that “a title that uses a celebrity’s name will be protected by the First Amendment unless the title is ‘wholly unrelaetd’ to the content or was ‘simply a disguised advertisement’”. The court of appeals found that the evidence presented a question of fact, that “upon consideration of all the evidence, a reasonable finder of fact could find the title to be a disguised commercial advertisement”.

The common law of most states creates an exception to liability for news reporting and commentary on matters of public interest, and many state statutes explicitly exempt news reporting and other expressive activities from liability. If your cooperative has a newsletter that you use pictures in, then you may be exempt from liability. In addition, hosting advertisements on your cooperative’s website does not deprive you of the news and commentary exception. Courts recognize that for-profit news organizations that sell advertising space are entitled to protection.

If you have taken pictures of your housing cooperative members and are planning on using them for any purpose, the safest route is to have any subjects sign a disclosure and release form allowing you to use their likeness for any housing cooperative purpose. Protect your housing cooperative through preventative measures, and always make sure to discuss these policies with your housing cooperative’s legal counsel