Image without a model release on book cover

[LesPalenik]

It is perfectly legal and allowed to use an image with a recognizable person without a model release inside a book as an "editorial image".
Is it allowed to use such an image also on the book cover or would it require in such case a model release?

[Slobodan Blagojevic]

I am not a lawyer, but I would say yes, it could be used.

However... if the same book cover is used later to promote the book, that would be considered advertisement, thus outside the fair use doctrine. Me thinks... perhaps wrongly.

[LesPalenik]

Thank you, Slobodan. I wonder if the book cover is considered by default as a marketing tool when the book is listed online with the picture of the front cover.

[BobShaw]

Asking legal and financial advise on the Internet is fraught with danger. Surely the publisher would be better placed.
What is a "recognizable person"? A public person like a politician may be Ok but the average person in the street unlikely.
It would also depend on the country you are talking about.
Personally I always get a model release regardless of the situation.

[LesPalenik]

In this case, the main subject was an unknown kayak paddler on a stretch of white water river in Ontario, Canada. No street and no way to get a model release.

[BobShaw]

In this case, the main subject was an unknown kayak paddler on a stretch of white water river in Ontario, Canada. No street and no way to get a model release.

Again, it depends. Generally if the person is incidental to the scene and it was taken in a public place then there should not be an issue, but that is just an opinion.

[langier]

Not too many photographers are attorneys hear; fewer still play one on TV... Best bet is to ask an attorney. If you are a member of ASMP, that's one of the benefits of membership. As always, YRMV.

That said, there's lots of lawsuits instigated and a lot of case law regarding covers gone wrong, many with what seemed to be innocuous images that the subject, though not recognizable, got a bunch of $$ since the cover implied a controversial subject and though the person on the cover had nothing to do with the subject, it still created a legal morass.

Speaking as a pragmatic like Slobodan, if the person is incidental, can't be identified/somewhat generic or timeless, you *may* be fine, but run it by an attorney any way since it seems you have some doubts.

Years ago a college got hit with a malicious lawsuit when a nut-job plaintiff found her published photo and alleged she jumped toward this person while riding in a funicular "traumatizing" him into thinking she was going to injure herself and blamed her for his PTSD.

My colleague took her case to a law firm who represented her pro-bono both knowing it was bogus. In the end the suit was dropped since the plaintiff was known to file baseless lawsuits (a known nut job) and claimed the day he was riding the funicular wasn't even close to the date my colleague too the photos with image metadata proving that she wan't even there. The photographer was the victim of the trauma when all was said and done.

[tcphoto1]

It is my understanding that a model release is required for anything other than an Editorial project. Unless you are giving away book for free, considering it an elaborate promo piece a release is required.

[Slobodan Blagojevic]

... Unless you are giving away book for free, considering it an elaborate promo piece...

I doubt. Commercial use concept in the Fair Use doctrine is rather limited to advertisement. Just having a commercial benefit from it is not enough to negate the fair use. You could, for instance, sell a print of it in a gallery and it would still be considered a fair use.

[LesPalenik]

The thing is that the image of the kayak paddler is really of editorial nature even if it is also on the front cover. I am quite sure that the unreleased image inside the book wouldn't create any problems since it is used strictly as editorial content, but would the same image on the cover be perceived in the same way (to show a prospective reader what's in the book) or as a selling/marketing tool to sell/promote the book?
 

[JoeKitchen]

At the end of the day, anyone can sue anyone (in the USA) over anything regardless if they have a case or not. 

Likewise, speaking from experience, the line between published and unpublished for uses in copyright registration is very very nuanced.  I have to assume the line between commercial and newsworthy is just as nuanced.  Sure, there are definites, but most will fall into a grey area.  A lawyer I hired in the beginning of the year for some legal issues made the comment that sometimes it all comes down to what the judge had for breakfast. 

So, at the end of the day, having a signed release is always best. 

Just to drive this point home, I went a lecture on the business of fine art by a successful NYC gallerist years ago.  He told the story of the gallery of a friend showing the work of a photographer from who was in Europe in a NYC gallery.  The photographer did not have any signed releases, but all the subjects where living in Europe, so no chance they would notice the show, right?.  Plus typically shows in galleries are considered fair use anyway, so they did not think there would any chances of any legal issues.  Or course the show needed to be advertised, and they picked the best image to do so.  The person on the image they choose was vacationing in NYC when the show opened, and BAM, lawsuit followed. 

[Slobodan Blagojevic]

... Or course the show needed to be advertised, and they picked the best image to do so...

This is exactly what I was saying in my first post.

[LesPalenik]

Thank you for all your professional advice. After a careful consideration, I decided to put the following image on the book cover:

[Slobodan Blagojevic]

I recognize that hand!

[LesPalenik]

I recognize that hand!

Are you sure? That was taken 10 years ago. Today, those fingers may show some swellings and signs of arthritis.

[David Eichler]

It is perfectly legal and allowed to use an image with a recognizable person without a model release inside a book as an "editorial image".
Is it allowed to use such an image also on the book cover or would it require in such case a model release?

I am not a lawyer and believe you should consult a lawyer. I believe that, even for a book that is being sold, a cover image is viewed legally as a form of marketing usage, and so a model release would be required.

[Slobodan Blagojevic]

… a cover image is viewed legally as a form of marketing usage…

No, it is not.

[David Eichler]

No, it is not.

You are wrong. And I was not fully accurate. There might be cases where a person's image can be used on a book cover without a model release, but there are clearly cases where a release is required for a book cover: https://creativelawcenter.com/model-releases/

[David Eichler]

At the end of the day, anyone can sue anyone (in the USA) over anything regardless if they have a case or not. 

Likewise, speaking from experience, the line between published and unpublished for uses in copyright registration is very very nuanced.  I have to assume the line between commercial and newsworthy is just as nuanced.  Sure, there are definites, but most will fall into a grey area.  A lawyer I hired in the beginning of the year for some legal issues made the comment that sometimes it all comes down to what the judge had for breakfast. 

So, at the end of the day, having a signed release is always best. 

Just to drive this point home, I went a lecture on the business of fine art by a successful NYC gallerist years ago.  He told the story of the gallery of a friend showing the work of a photographer from who was in Europe in a NYC gallery.  The photographer did not have any signed releases, but all the subjects where living in Europe, so no chance they would notice the show, right?.  Plus typically shows in galleries are considered fair use anyway, so they did not think there would any chances of any legal issues.  Or course the show needed to be advertised, and they picked the best image to do so.  The person on the image they choose was vacationing in NYC when the show opened, and BAM, lawsuit followed.

The fact that someone filed a lawsuit does not mean they actually had a case. The question is whether a judge allowed the lawsuit to proceed and what the outcome was if the case could proceed. Obviously, having a release would seem to help when it actually comes to court, but anyone can try to sue.