Photography

by Barry 0. Hines and R. Kurt Wilke

The Any town Park District thought it had the perfect photograph to illustrate the cover of its newsletter—a young couple, arm in arm, seated on a park bench by the pond, enjoying a fine summer day. After the newsletter was printed and distributed to every resident in Anytown, the problem with the photograph was promptly brought to the district's attention by the angry couple, who were married but not to each other.

Any time an organizations publishes a photograph depicting people, the right of privacy is implicated. The right to be left alone has been legally recognized in one form or another for a great many years. The Illinois Supreme Court joined many other states by announcing in 1970 that the right of privacy is a legally protected right, and one who violates that right can be subject to liability. [Leopold v. Levin (1970), 45 Ill.2d 434,259 N.E.2d 250]. In the case of a photograph taken at a public place like a park, three types of invasion of privacy claims can arise:
1) unreasonable disclosure of another's private matters;
2) placing another in a false light, and
3) appropriation of another's name or likeness.

My affairs are my affairs!
Can the angry couple sue Anytown Park District for disclosing their illicit affair? Probably not. The courts generally agree that anything visible in a public place can be recorded and given circulation by means of a photograph since this amounts to nothing more than giving publicity to what is already public and what anyone present would be free to see. The Anytown example is based on a New York case in which CBS broadcast a clip showing a male and a female construction worker walking hand in hand down Madison Avenue. It turned out that they were married, but not to each other. The court in that case ruled that there was no invasion of privacy. [De Gregorio v. CBS. Inc. (N.Y. Sup. 1984), 123 Misc. 2d491, 473N.Y.S.2d922].

Some cases have resulted in liability, but those cases generally have involved clearly objectionable photographs. For there to be liability for disclosure of private matters, the disclosure must be unreasonable; that is, offensive or objectionable to a reasonable person. For example, an Alabama reporter photographed a woman at a county fair. There was no dispute that the woman was in a public place, however, the photograph was snapped in an embarrassing moment when a gush of air blew the woman's dress up. In an apparent lack of good judgement, the newspaper ran the photo on its front page, and the Alabama Supreme Court ruled the paper was liable in damages to the woman. [Daily Times Democrat v. Graham (A/a. 1964), 276 Ala. 380,162 So.2d474J. The cases suggest that as long as the photograph is not offensive or objectionable to the reasonable observer, a claim based on disclosure of a private matter will not succeed.

(continued)

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It's not how it looks!
The second page of Anytown Park District's newsletter contained another photograph. The district was proud of its cooperation with the county probation office on a work-release program, and the newsletter included a feature article on this subject. To illustrate the piece, the district used a file photo of a man repairing a fence in South Park. Unfortunately, the man was not a convicted felon, but a local minister helping his youth group with a community service project.

Does the minister have a case? He may have. This example illustrates the second theory of liability—placing another in false light. Even though there is nothing false about the photograph itself, it accompanies text on an unrelated subject, giving the impression that the two are related. Whether liability is imposed will depend on 1) whether the false light in which the minister was placed (depicting him as a convict) would be highly offensive to a reasonable person, and 2) whether the district knew or recklessly disregarded the fact that the photo depicted a minister and not a convict.

Although they are difficult to win, false light cases involving photographs are not infrequent. In a 1987 case, a newspaper published a story about a convicted, mentally ill murderer, but mistakenly ran the story with a photograph of another man—who sued. Certainly, the false light was highly offensive, but the Oklahoma Supreme Court denied the man's claim, because he only proved the newspaper was negligent, not that it acted recklessly. [Colbert v. World Pub. Co. (Okl. 1987). 747 P.ld 286].

It should be cautioned that in many false light cases, the plaintiff will also have a claim for defamation (also known as libel). In a defamation case that involves a "private person," the Illinois Supreme Court has ruled that proof of mere negligence is sufficient to impose liability. [Troman v. Wood (III.1975), 62 Ill.2d 184, 340 N.E.2d 292]. People caught on camera using and enjoying a public park will most likely be private persons, as distinguished from public officials and public figures, who have less protection from libel and slander claims. Regardless of the applicable standard, however, claims under a false light or defamation theory should be unsuccessful where the photograph is published in its proper context.

What a cute kid photo, but...
On the back of Anytown Park District's newsletter is a pledge form which could be used to send in donations for the district's annual fundraising campaign. The form was printed over a photograph of the district-sponsored Easter Egg Hunt, with the focus on a smiling young girl. Her parents have notified the district that they intend to contact an attorney. Will the parents win if they sue? Probably not. First, it makes no difference under the law whether the claim involves an adult or a minor; the same legal concepts apply. The parents' claim is one for appropriation. The theory of appropriation is based not so much on a right of privacy, as it is on the right to control one's own publicity. Liability for appropriation arises most frequently where a celebrity or other well-known person's name or likeness is used for a commercial benefit. If one seeks to obtain some commercial or other advantage from the use of a person's name or likeness, he should obtain consent.

On the other hand, when a person is incidentally shown in a photograph, depicting some public event, an appropriation claim should be unsuccessful. In a recent case, a dog-racing park put out a promotional brochure which contained photographs of patrons at the park, and two of those depicted sued the park for invasion of privacy. Even though the brochure was distributed to promote the park commercially, the court denied the claim because there was no commercial advantage to the incidental use of the patrons' photographs. [Schifano v. Greene County Greyhound Park. Inc. (Ala. 1993), 624 So.2d 178].

Invasion of privacy claims can be avoided entirely by the use of a written release. The components of a standard release form are an acknowledgment of consideration, release language, and a dated signature. For example:

Release and Permission to Publish
For value received, the receipt and sufficiency of which is acknowledged, I consent to being the subject of photographs taken by or on behalf of Anytown Park District, and further consent to the publication, copyright, sale, or any other use of such photographs, regardless of their form or any other lawful purpose whatscore.

I further release Anytown Park District, together with its officers, employees, agents and assigns, from any and all claims for damages for libel, slander, invasion of privacy or any other claim based on the use of said photographs regardless of their form or content.
Dated this......................day of.........................., 1999.....
Name..............................................................................
Address..........................................................................

22 • Illinois Parks & Recreation * November/December 1995

Most claims for invasion of privacy can be avoided by simply exercising good judgement under these guidelines, by not using photographs which are obvious intrusions of privacy, and by obtaining consent in any case where it is easy to do so, and certainly in those cases where a particular person's photograph may be used to obtain some commercial or other benefit.

Barry 0. Hines and R. Kurt Wilke are partners in the Springfield law firm of Barber, Segatto, Hoffee & Hines, where their practice includes representation of media and other clients on defamation and First Amendment issues. Mr. Hines is past Chairman of the Illinois State Bar Association's Fair Trail/Free Press and Media Law Committee.

Remember to complete the IAPD/IPRA Readership Survey by January 1
--a special insert in this issue of Illinois Parks & Recreation!

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