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A legal question

Lit. crit. has noticed the existence of Southern gospel music, I'm sorry to say. As an English PhD, I hold that it's a sad day when the literary theory crowd notices the existence of anything good, and especially of any of those good things that involve a human sub-culture with its own special quality. Some assistant prof. in an English department has decided to write a book in, inter alia, "queer studies" about Southern gospel. Tenure seeking, perhaps? Because it deserves all the obscurity it can get, I hesitated to write a post that mentioned it.

However, since we have a few legally savvy people here, I did have one question that readers may be able to answer. Can he get away with using the photograph he has on the front cover without permission? The cover photo features four Southern gospel singers: Left to right, Scott Fowler, Mark Trammell, Glen Dustin, and Danny Funderburk. I think we can safely say that it would be a cold day in hell before these men would have given their permission for their images to be used on the cover of this book. Moreover (see below), since they are professional singers they make their living in part by the use of their own image to advertise their own products. Aren't there such things as publicity rights (which La Wik defines as "the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one's identity") to prevent this?

Here are what seem to me a few relevant quotations from the Illinois Code on the subject (since the book was published by the University of Illinois Press):

"Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.
a) A person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act or their authorized representative.

I realize that the University of Illinois Press probably has its own legal eagles giving advice, but it's just barely possible that the use of this image was based on the assumption that Southern gospel artists aren't overly blessed with cash and wouldn't want to pay a lawyer to make a fuss. I would point out, however, that in case of a suit, section 55 makes it probable that the court would award attorney's costs to the prevailing party. And given what appears (to my non-professional eye) to be the clarity of the law on the relevant point, it might never need to come to a suit. Just a friendly letter from a lawyer requesting that they cease and desist the commercial use of these singers' images ought to be enough. If that fails, section 50 provides for a restraining order. Moreover, if punitive damages are sought, it should be relevant that the, er, nature of the book makes it plausible that people viewing the image and reading the blurb might think (untrue) things about the men pictured on the front cover which would be commercially damaging to them as professional singers in the Southern gospel milieu.

What do my readers think?

Comments (28)

Who owns the photo?

Presumably whoever took it, but I believe the author has obtained permission from that individual.

My question here doesn't concern copyright permission on the photo (which I'm guessing would have been easier to obtain than permission from the people in the picture) but rather the publicity rights issue--the rights of the people pictured to control the use of photographs of themselves for commercial purposes. It looks like there certainly should be a legal issue there, and the Illinois law doesn't seem to hinge on your owning the photo but seems to apply regardless of who took the photo and/or owns it. It's your control of the use of your identity, which includes photos of yourself.

Ask Vanessa Williams. A release is generally a release.

What does that mean for this scenario?

So long as the photo is not used to endorse a product (being on the cover of a book in part about the people in the photo doesn't count) or in any way make it appear that the people in the photograph are endorsing a product, then the only rights that need be obtained are the ones signed over by the photographer, not the subjects of the photo. Publicity rights are by and large relatively non-existent in the US.

Todd, thanks, that's a directly relevant answer. I had just assumed that use of one's picture on the cover of a book, when the book is being sold for money, would count as a use of the person's picture "for commercial purposes." I read, for example, about how some restaurant couldn't call itself "Dillinger's Restaurant" because the gangster's heirs sued for control of the name. It seems a shame that the use of the identity could be forbidden in that case by publicity rights law but not in this case.

What's funny is that it seems in that case that some corporations take unnecessary precautions. For example, if you get your picture taken at a commercial photographer, they ask you to sign a permission slip that they can use your photos to advertise their photography business. That would seem to be a somewhat similar case, and no one would automatically assume that you were endorsing a product there, yet the commercial photographer seems to consider that permission from the subject of the photo is necessary to obtain.

I could be mistaken, but I would assume that the precaution stems from wanting to make it explicit that you are releasing it for commercial gain on their end. It'd be significantly harder to sue them for commercial use if the release you sign mentioned that use by name.

Yeah, but it sounds like the way that "for commercial gain" is being defined in law, as Todd explained it, the kind of use "for commercial gain" that a professional photographer would want to make isn't something he needs your permission for. It's not like J.C. Penney is going to be implying that you, personally, endorse their product.

In order to use a photo to advertise my business, I need a release, but it's an odd case where simply being in the image and tying that image into advertising for the taking of the image, it implies that the subject is endorsing the product.

If I take a picture of a person in a studio setting or whatever and then later decide to sell that print as a piece of art, I don't need a release at all (though I'll get one anyway, just to cover my bases).

In terms of how the photo is used above, it falls more under editorial usage.

Todd, I suspect that there can be more nuances than "used commercially to promote a product" and the additional level of permission needed for that. I don't know if any jurisdiction's law worries about such additional nuances.

For example, If I am a political candidate, and someone sticks my picture on a book about X (where X is anything at all except my avowed political positions) I can legitimately complain that they are diluting my publicity capacity. Maybe the law doesn't care about that. If I am an airline pilot, and someone sticks my picture on the cover of a book attached to a jumbo jet headed for the 2 Towers, I've got a major problem, even though I am not presented as endorsing a commercial product. This can both damage my professional career, and make personal life a problem. There's lots more ways somebody using my photo can be abusive apart from promoting a product.

I find it difficult to believe that law doesn't permit anything to be done about anything other than commercial promotion.

I like Tony's analogy of the pilot's image being used with the Twin Towers and a jet flying into them.

I very much trust Todd's judgement on this type of thing, since he's had to work with it as a photographer. I admit to being rather surprised at the narrow meaning of "us[ing] an individual's identity for commercial purposes." That extremely narrow meaning certainly isn't what immediately springs to mind as the only possible application of the law as worded, but law is a strange beast, and it's entirely possible that Todd is right.

On the basis of the types of considerations Tony raises, and on the basis of the existence of this Illinois law. were I in the position of the men in the picture on this book, I would at least get some legal counsel and specifically raise the issue of publicity rights under Illinois law. It's likely that the lawyer in question won't be licensed himself to practice in Illinois, but a singer's legal counsel probably does have to be able to look into things like publicity law in other states where the singer's products would be sold. And it's possible that courts in different states have come up with different interpretations of things like "use [of one's identity] for commercial purposes." So some research and legal investigation would at least seem to be justified. After all, sometimes a letter from one's lawyer can be effective if any plausible case at all can be made.

So long as the photo is not used to endorse a product (being on the cover of a book in part about the people in the photo doesn't count) or in any way make it appear that the people in the photograph are endorsing a product, then the only rights that need be obtained are the ones signed over by the photographer, not the subjects of the photo. Publicity rights are by and large relatively non-existent in the US.

This depends on the state. Some states have particularly strong right-of-publicity laws. Tennessee, for instance, has one of the oldest and strictest statutes, called for eponymously obvious reasons, the "Elvis Law." See Tenn. Code Ann. §§ 47-25-1101--08. See also Annie T. Christoff, Long Live the King: The Influence of Elvis Presley on the Right of Publicity in Tennessee, 41 U. Mem. L. Rev. 667 (2011). I believe Georgia also has comparatively stringent laws on the subject derived from ruckus over the fellow who has a national holiday on Monday.

Now, I am not an expert in the Elvis law. I have never had a case raising it, although I have represented gospel musicians. I know that there are various fair-use exceptions mandated, at least in part, by the First Amendment. But Todd's statement that he or someone else can use another person's image for commercial gain without his consent, so long as the image is not used as an endorsement, is not, I am fairly certain, the law in every state.

Thanks, Titus. I was sure you'd have interesting input. Yours further confirms the conclusion that this would be worth the musicians' while to have investigated by counsel.

This link is interesting:


Particularly this quotation:

Most litigation involves celebrities, as it is usually difficult for an ordinary person to demonstrate that use of his/her likeness has commercial value and thus requires compensation for commercial misappropriation of the persona. Celebrities are also more likely to have the wherewithal for hiring legal experts.

What that implies is that the relevant consideration is, at least in some states, whether the use of the image has commercial value in itself for some special reason. That would be an interesting point to argue in this case. These musicians are all well-known within the "little pond" of Southern gospel music about which the book is written. A lawyer could argue that their images, as opposed to the image of some unknown regional artist, for example, are more likely to sell copies of the book, partly by raising curiosity (given the nature of the book) about what the book might say about the known artists portrayed on the cover.

This link is specifically about Illinois publicity rights law. It identifies "commercial purposes" like this (emphasis added):

The prohibited commercial purposes include use of the individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for purposes of fundraising.

In the case in the post, the person's identity is being used on a product offered for sale--the book. The word "endorsement" does not appear on the page. The advice concludes (emphasis in original):

So if you wish to use someone’s name, image, or other identifiable attribute in advertising or in connection with sale of goods or services, you should first obtain that person’s consent! Often this is done by having the individual sign a Model Release granting you the right to use the person’s name and/or image for commercial purposes.

Just doing my own non-professional research here, but as far as I can see, this is the advice the author and/or press should or would have received had they raised this question.

I can't help wondering if part of the reason it wasn't considered a problem is precisely because it's a book. But I'm not convinced that its being a book as opposed to a T-shirt or a beer bottle or i-phone or whatever should make the crucial difference. Not being a lawyer nor playing one on TV, of course. Just an enthusiastic amateur who would like to see the English prof. stopped from using this photo.


"I can't help wondering if part of the reason it wasn't considered a problem is precisely because it's a book."

How did we get to the point of having a "problem"? Either the photo is owned by someone or it is in the public domain. If it owned by someone, they either have a release or they don't. If it is PD then the publisher either got the releases and jumed through the other necessary hoops or they didn't. So far, all I see are a bunch of unanswered questions.

Al, it's a little unlike you to be legally dense. You are talking as if copyright on the photo were the only legal issue. That is distinct from any publicity rights that may have been been violated by using this without permission *from the subjects*. All you are talking about are the rights to the picture. These are different issues. Proper copyright protocol on the picture must be followed, but if the picture is used "for commercial purposes," the consent of the subject of the picture must also be obtained. This is clearly spelled out in the link I provided in the previous comment. I am all but certain that the consent of the subjects was _not_ obtained. I believe the book author claims that the consent of the photographer was obtained. The subjects of the picture did not own the picture. That probably takes care of the ownership rights/copyright on the picture, but it does not take care of the publicity rights of the subjects of the picture. How much clearer do I have to make it?

Lydia, I covered all that and I understand the distinction between copyright and privacy/publicity issues. Read my post carefully. Someone took the pic so either someone owns it or it is in the public domain. If someone owns it, someone either has a release that covers its use as a book cover or they don't. If it is in the PD then the publisher needs to get their permission to use the photo for a cover. If the owner doesn't have the necessary release then the publisher has to get a release from them (the performers) separate from whatever deal is made with the owner. My point is that unless you have been in contact with any of the principles, we lack a lot of necessary information. The book will likely have photo credits which will, perhaps, answer some of my questions.

The author is a blogger. My understanding is that he has said on his blog in so many words that

a) he did not get permission from the performers,

b) he does not believe he needs permission from the performers,

c) the picture was taken by a private individual at the performance who gave permission for it to be used on the book cover.

This has been an interesting thread on the blog where it originated. The state of Illinois may have some unique prohibitions in this type of situation but otherwise the legal rights in the photo reside with the copyright owner, in this case the photographer. Assuming he had a release signed by the subjects in the photograph and that the photo was taken at a public event (or with permission of the responsible party if it was a 'closed' event), no further permission would be required. I'm also not certain that an argument could be made that the photo's use on the book's cover constitutes a "commercial purpose". Since most academic texts are published for educational purposes by non-profit entities, such as the University of Illinois, the photo's use would most likely be considered non-commercial. Besides, if the individuals depicted on the cover did not want their images associated with a book that includes one chapter on the issue of homosexuality within the genre of southern gospel music, they should devise their own highly restrictive releases or amend the standard release forms used by most photographers. It seems doubtful they would have any legal recourse if they gave permission for unrestricted use of their images and, despite their personal moral objections, the portion of the text they found offensive or potentially damaging comprised less than 10% of the book's contents.

They didn't give permission for unrestricted use of their images. The guy just took his photo and gave it to Harrison.

Assuming he had a release signed by the subjects in the photograph

Why assume that? Did he? If it was taken at a concert, why would they?

Since most academic texts are published for educational purposes by non-profit entities,

You are under the impression that a university press is a 501c3. Really? That academic texts are not published for profit? Really? I'm also not at all certain that a non-profit entity that _sells_ something is not covered by such a law.

they should devise their own highly restrictive releases or amend the standard release forms used by most photographers.

Some guy in the audience at a concert takes a photo, and you assume that the performers signed a "standard release form" to him as a photographer. That's a highly dubious assumption. We're not talking about going to a studio and getting your picture taken by a professional photographer whom you have deliberately hired to photograph you.

If you have specific evidence that this person taking a picture from the audience got a release from the performers for the commercial use of their photo, do bring it forward.

A university press operation could easily be a for-profit entity owned by the university. Tax laws are funny, but the government is often careful to pry apart things that at first glance appear to be unified in ownership. Recent rules, for example, allow that an Indian tribal government is a governmental employer, but that doesn't mean that the gas station employees on the reservation are "governmental employees" even though the tribe owns and operates the gas station. A lot depends on circumstances, but if the press sells some books for more than their production costs, it could be hard for them to escape falling under the "for profit" rules even if the operation as a whole didn't turn a profit.

Moreover, I see nowhere in the Illinois law where an exception is made for a non-profit organization. The book is a product being offered for sale. According to the analysis quoted above of Illinois law, "commercial purposes" include "use of the individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services." Nothing there about whether the product is being offered for sale at a price that constitutes a net loss for the entity offering it.

Wow, you all are hilarious. I enjoyed my stay but it's checkout time.

I take it that means that CVH doesn't have the evidence I asked for.

It would, in any event, seem extremely unlikely that a public performer would sign a blanket release for all photos taken by random fans in the audience to be used for commercial purposes. Nor, as far as I know, does merely giving a musical performance in public amount to waiving any publicity rights one might otherwise have concerning the commercial use of one's image.

I am a bit late to the party here, but I have some thoughts. Unauthorized or "tell-all" biographies of celebrities usually have a photo of the subject on the cover. Similarly, one can easily find books harshly critical of Clinton, Bush, or Obama that have a photo of the president in question on the cover. It seems that, whether it is technically legal or not, publishers do believe they can put someone's picture on a book cover whether or not he approves of the contents. Since the practice is so common, I wonder if there was indeed a court case at some point establishing the right to do so. Publishing companies are usually quite cautious about copyright/fair use issues otherwise.

Such laws vary from state to state, so it would depend on which state a given "tell-all" book was published in. It isn't really a fair use or copyright issue, exactly. I find it a _bit_ surprising that UIP would not have been more careful, but I do not take that to be at all an indication that what they are doing is legal and/or that they can get away with it if the singers take the time, trouble, and initial financial outlay to make an issue of it.

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