Is a Photo Release valid when it is in a Release?

New York court said maybe not.

Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)

Plaintiff: Maureen S. Bateman

Defendant: Sport Photo and EMS, Inc.

Plaintiff Claims: Violation of New York Civil rights law §§ 50, 51 (misrepresentation of release signed to enter a road race)

Defendant Defenses: release and contract

Holding: for the plaintiff

This case is about a little clause found in numerous releases in the outdoor recreation industry. The clause is the photography release in the release.

In this case, the plaintiff signed the release to enter the New York Roadrunners Club (NYRRC) 10K road race. The plaintiffs photograph was assigned to the defendant who used it to advertise another race. The defendant was in the business of soliciting contestants to buy photographs when they ran a race.

The plaintiff found out about the use of her photograph when the defendant used it to attempt to market the New York Marathon.

Defendants’ employees take photographs of runners as they participate in a race.  Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband.  Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband.  Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”.  Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon.

The plaintiff sued over the issue. The defendant filed a motion for summary judgment which this court denied.

Summary of the case

The plaintiff argued there were two legal issues at stake:

…“whether plaintiff, by signing the so-called “release”, consented to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assignment by NYRRC to Sportphoto.”

Normally contracts are only interpreted by the language of the contract. No other evidence can be brought into to interpret the contract. Specific words in a contract are given the definition found in the contract, if not defined there, then as used in the industry or as defined by courts in other cases.

At issue was the interpretation of the word in the photo release, legitimate. In this case, however, the court found a different interpretation for the word “legitimate.” The defendants argued the word should be defined as found in a dictionary, which would be the definition that would normally be used.

Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.

Releases under New York law are interpreted according to New York contract law.

The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given.  Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of.”

The reason why the court stretched was based upon the plaintiff signed a release to race and also gave up her photographic rights.

The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering.

The plaintiff raised valid issues, bordering on misrepresentation, about how her legal agreement was reached. “…the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace.”

The court could find that whether the plaintiff intended to run a road race or give up her photo rights. “Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.”

The plaintiff also argued that the assignment between the NYRRC, and the defendant was invalid.

In both cases, the court stated that there was a genuine issue of fact that had to be reviewed by a jury.

So Now What

Like any clause in a contract or release, make sure if your guests want to read the release they have the opportunity to read the release.

You may want to identify the photo release with a bold heading so people cannot argue you tried to hide it.

I would also suggest that when you are going to use someone’s photograph you contact them and offer an incentive for using their release; a free trip, a discount, a T-shirt even. Most people if given the opportunity would love to have their photograph used. By providing your guests with some type of consideration (money) post contract you are at least going to find out how they feel and arguing you “paid” for the right to sue their photos.

This case has me wondering.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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By Recreation Law   Rec-law@recreation-law.com       James H. Moss

@2013-2023 Summit Magic Publishing, LLC

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