Our historical society produced a documentary about the making of a sculpture. Our videographer filmed work in the sculptor’s studio and in so doing, in the background captured photographs the sculptor had on a storyboard for another project. Is it necessary to obtain permission to use the individual’s image, even though it was not prominent nor the subject of the documentary?
When people see a lawyer to complain about the misuse (or “misappropriation”) of their image, there are several legal theories that lawyer might assess the situation for, including:
- Violation of image rights
- Copyright violation
- Trademark violation
- Defamatory content
- Illegal or proprietary content (this is a long list, but includes things like an image obtained illegally, trade secrets, or criminal content)
- Contract violation
In this case, a historical society was making a documentary and, in the course of filming, inadvertently captured a photographic image of an unrelated private person in the background.
Of the items listed above, there are at least two, and perhaps three legal claims that could apply:
1. The person in the photo could claim their image is being used without their permission for commercial purposes;
2. The person who owns the copyright to the photo could claim that including it in the video is infringement;
3. The person who commissioned the other project, using the photo, could have required the image be kept confidential, meaning that including it risks a violation of a contract.
Of these three, the first two could pose a claim against the historical society, and the third could lead to them being named as a witness.
For a small documentary project with no commercial purpose (the video is not for sale, and not being used to fund-raise), the chances of a person having the right incentive to bring a costly legal action seeking damages is low. That said, money is not the only thing that motivates lawsuits. So how could the historical society mitigate the risk?
Option #1: Ask Nicely
One option would be to disclose the incidental use in advance and get written permission from the subject of the photo and from the photographer. With the right permission secured and documented, there is no chance legal action would be successful. And if either says “no,” you still have two other options...
Option #2: Make it Blurry
The second option would be to blur the image; if the image is not recognizable, then the first two claims would be non-existent, and there would be little evidence to support the third. Of course, this can be a pain and might not be the best choice from an aesthetic standpoint. So there is also...
Option #3: (Carefully) Roll the Dice
As a third option, the society could engage in calculated risk-taking by: a) verifying they have insurance for “advertising injury” (and confirming that it doesn’t exclude image rights and copyright claims); b) obtaining a legal opinion stating that the non-commercial use means there is no image rights claim and that the inclusion of the copyrighted photo is fair use; and c) hoping no one gets mad.
Of these three options, each has its own drawbacks, but I am a fan of Option #1, as it not only removes all doubt but ensures the society won’t have to deal with negative publicity and people taking sides in a squabble about image rights. When organizations depend on reputation and goodwill for donations and community support, diplomacy is wise from both the legal and relational perspectives.
Of course, for a larger endeavor (a documentary with a serious budget, or perhaps with the backer of a grant or a major donor), this type of issue can be addressed on the front end through waivers and participation agreements. But for a small organization capturing local history in the making, the above three approaches can work after-the-fact.
Thank you for the thoughtful question.
 See, e.g., Candelaria v Spurlock, 2008 US Dist LEXIS 51595, at *4 [EDNY July 3, 2008] (“To state a claim under NYCRL § 51, a plaintiff must allege: (1) the use of his name, portrait, or likeness; (2) for ‘advertising purposes or for the purposes of trade;’ (3) without written permission. … New York courts have also created an exception under NYCRL § 51 for ‘incidental’ uses of a person’s likeness … In order to establish liability under the statute, a plaintiff must demonstrate a ‘direct and substantial connection between the appearance of the plaintiff's name or likeness and the main purpose and subject of the work.’ Courts have found that ‘isolated’ or ‘fleeting and incidental’ uses of a person’s name or image, even if unauthorized, are insufficient to establish liability.”).
 See, e.g., Natl. Photo Group, LLC v Allvoices, Inc., 2014 US Dist LEXIS 9190, at *16 [ND Cal Jan. 24, 2014] (“To state a prima facie case of direct copyright infringement, a plaintiff must show that (1) it owns the copyright for the allegedly infringed materials and (2) the defendant violated at least one of the exclusive rights listed in Section 106 of the Copyright Act.” Those rights include the rights to: “reproduce the copyrighted work in copies or phonorecords … to prepare derivative works based upon the copyrighted work … to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending … to perform the copyrighted work publicly … to display the copyrighted work publicly; and … to perform the copyrighted work publicly by means of a digital audio transmission.”).
 A case for breach of a non-disclosure agreement has the same three elements as any contract claim: “(1) a valid contract; (2) a material breach; and (3) damages.” Brown v. Capital One Bank (USA), N.A., 2015 U.S. Dist. LEXIS 127497, at *3 (S.D. Fla. 2015).
 See, e.g., Hirsch v CBS Broadcasting Inc., 2017 US Dist LEXIS 123468, at *13-14 [SDNY Aug. 4, 2017] (“The Act provides that ‘the fair use of a copyrighted work . . . is not an infringement of copyright.’ As the purpose of copyright is ‘[t]o promote the Progress of Science and useful Arts,’ U.S. Const., Art. I, § 8, cl. 8, the Act bars liability for copyright infringement when the reproduction or copying of a copyrighted work is undertaken ‘for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.’ The fair use defense thus ‘allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances.’”) (Citations omitted).