A New York state court recently found a book publisher liable for using a photograph of plaintiff Tasleema Yasin for the cover of its fictional book entitled Baby Doll. New York's Civil Rights Law provides that it is a misdemeanor to use a person's name, portrait or picture for advertising or trade purposes without obtaining written consent from the person. While the defendants initially argued that they had obtained the necessary release for the image from the photographer who originally took Ms. Yasin's picture, the release did not include Ms. Yasin's right of privacy. Because it was undisputed that the defendant used Ms. Yasin's picture without her written consent, the key question before the court was whether the use of the picture on the book cover constituted use of photograph for advertising or trade purposes. The court held that the use of the photograph on the book cover did constitute use for "marketing and trade purposes." The court reasoned that the use of the photograph did not fall within the newsworthy or public interest exception because there is no relationship between Ms. Yasin's picture and the book's subject matter, and the court further concluded that the use was not itself a work of art. Consequently, the court issued a permanent injunction, prohibiting the defendants from further selling the book or using Ms. Yasin's image.

TIP: When obtaining releases for the use of content in advertising, ensure that you obtain rights not only to the copyright, but also to the right to use the right to use any individual depicted in the work. Furthermore, use of a person's image without permission for merely commercial purposes may raise right of publicity concerns, even when in connection with a work otherwise protected by the First Amendment.