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It seems there is a right to publicly share photographs of people taken without their permission, if the photographs are taken in public places.

Would that right apply to a church setting? Or would waivers have to be signed for such releases? In particular I'm asking in Washington State.

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    In what context are the photos being publicly shared?
    – bdb484
    Jan 18, 2022 at 5:38

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It seems there is a right to publicly share photographs of people taken without their permission, if the photographs are taken in public places.

This is a significant oversimplification. Not all public sharing of photographs taken without the permission of the person whose photograph is taken are subject to the right of publicity in Washington State.

Generally speaking, only advertising type uses for monetary gain are covered and there are many exceptions to the general rule.

The right of publicity in Washington State is most similar to a registered trademark right.

if the photographs are taken in public places. Would that right apply to a church setting?

The place that the photograph is taken doesn't matter under Washington State Law (and it need not be a photograph). The critical factor is how the photograph or other distinguishing feature of a person is used.

Washington does not recognize a common law right of publicity and instead addresses right of publicity through its explicit right of publicity statute which was created effective June 11, 1998. See Joplin Enters. v. Allen, 795 F. Supp. 349, 351 (W.D. Wash. 1992). Washington State recognizes a statutory right of publicity. Wash. Rev. Code § 63.60.010-080 (2012). The sections of the statute are as follows:

63.60.010 Property right—Use of name, voice, signature, photograph, or likeness.

63.60.020 Definitions.

63.60.030 Transfer, assignment, and license.

63.60.040 Right is exclusive for individuals and personalities.

63.60.050 Infringement of right—Use without consent—Profit or not for profit.

63.60.060 Infringement of right—Superior courts—Injunctions—Liability for damages and profits—Impoundment—Destruction—Attorneys' fees.

63.60.070 Exemptions from use restrictions—When chapter does not apply.

63.60.080 Community property rights.

Some of the key language is as follows (emphasis added):

Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness. . . .

The right exists whether or not it was commercially exploited by the individual or the personality during the individual's or the personality's lifetime.

Any person who uses or authorizes the use of a living or deceased individual's or personality's name, voice, signature, photograph, or likeness, on or in goods, merchandise, or products entered into commerce in this state, or for purposes of advertising products, merchandise, goods, or services, or for purposes of fund-raising or solicitation of donations, or if any person disseminates or publishes such advertisements in this state, without written or oral, express or implied consent of the owner of the right, has infringed such right. An infringement may occur under this section without regard to whether the use or activity is for profit or not for profit.

(1) For purposes of RCW 63.60.050, the use of a name, voice, signature, photograph, or likeness in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody relating thereto, shall not constitute a use for which consent is required under this chapter. A matter exempt from consent under this subsection does not lose such exempt status because it appears in the form of a paid advertisement if it is clear that the principal purpose of the advertisement is to comment on such matter.

(2) This chapter does not apply to the use or authorization of use of an individual's or personality's name, voice, signature, photograph, or likeness, in any of the following:

(a) Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies;

(b) A literary work, theatrical work, musical composition, film, radio, online or television program, magazine article, news story, public affairs report, or sports broadcast or account, or with any political campaign when the use does not inaccurately claim or state an endorsement by the individual or personality;

(c) An advertisement or commercial announcement for a use permitted by subsections (1) and (7) of this section and (a) or (b) of this subsection;

(d) An advertisement, commercial announcement, or packaging for the authorized sale, distribution, performance, broadcast, or display of a literary, musical, cinematographic, or other artistic work using the name, voice, signature, photograph, or likeness of the writer, author, composer, director, actor, or artist who created the work, where such individual or personality consented to the use of his or her name, voice, signature, photograph, or likeness on or in connection with the initial sale, distribution, performance, or display thereof; and

(e) The advertisement or sale of a rare or fine product, including but not limited to books, which incorporates the signature of the author. (3) It is no defense to an infringement action under this chapter that the use of an individual's or personality's name, voice, signature, photograph, or likeness includes more than one individual or personality so identifiable. However, the individuals or personalities complaining of the use shall not bring their cause of action as a class action.

(4) RCW 63.60.050 does not apply to the owners or employees of any medium used for advertising, including but not limited to, newspapers, magazines, radio and television stations, online service providers, billboards, and transit ads, who have published or disseminated any advertisement or solicitation in violation of this chapter, unless the advertisement or solicitation was intended to promote the medium itself.

(5) This chapter does not apply to a use or authorization of use of an individual's or personality's name that is merely descriptive and used fairly and in good faith only to identify or describe something other than the individual or personality, such as, without limitation, to describe or identify a place, a legacy, a style, a theory, an ownership interest, or a party to a transaction or to accurately describe the goods or services of a party.

(6) This chapter does not apply to the use of an individual's or personality's name, voice, signature, photograph, or likeness when the use of the individual's or personality's name, voice, signature, photograph, or likeness is an insignificant, de minimis, or incidental use.

(7) This chapter does not apply to the distribution, promotion, transfer, or license of a photograph or other material containing an individual's or personality's name, voice, signature, photograph, or likeness to a third party for use in a manner which is lawful under this chapter, or to a third party for further distribution, promotion, transfer, or license for use in a manner which is lawful under this chapter.

The statutory remedies are broader than the common law right which is limited to a common law tort for money damages, since it allows for injunctive relief, destruction of offending works, penalties that are not compensatory in nature, and attorney fee awards.

(1) The superior courts of this state may grant injunctions on reasonable terms to prevent or restrain the unauthorized use of the rights in a living or deceased individual's or personality's name, voice, signature, photograph, or likeness.

(2) Any person who infringes the rights under this chapter shall be liable for the greater of one thousand five hundred dollars or the actual damages sustained as a result of the infringement, and any profits that are attributable to the infringement and not taken into account when calculating actual damages. To prove profits under this section, the injured party or parties must submit proof of gross revenues attributable to the infringement, and the infringing party is required to prove his or her deductible expenses. For the purposes of computing statutory damages, use of a name, voice, signature, photograph, and/or likeness in or related to one work constitutes a single act of infringement regardless of the number of copies made or the number of times the name, voice, signature, photograph, or likeness is displayed.

(3) At any time while an action under this chapter is pending, the court may order the impounding, on reasonable terms, of all materials or any part thereof claimed to have been made or used in violation of the injured party's rights, and the court may enjoin the use of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.

(4) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all materials found to have been made or used in violation of the injured party's rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.

(5) The prevailing party may recover reasonable attorneys' fees, expenses, and court costs incurred in recovering any remedy or defending any claim brought under this section.

(6) The remedies provided for in this section are cumulative and are in addition to any others provided for by law.

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  • Very interesting and helpful, thank you. So the restriction seems to be around commerce and fundraising. If the images are used exclusively in a Live Stream Broadcast of a church service on the internet and viewable by the public at large, there would not appear to be any legal issue. Does this sound accurate? What if the broadcast includes a presentation of ways to donate money to the church, does that constitute fundraising? Are there any special restrictions regarding children? Feb 15, 2022 at 20:46
  • I do not believe that a Live Stream Broadcast of a church service would violate anyone's legal right of publicity in Washington State, although better practice would advise the congregation that it is being Live Streamed so that they could decline to attend if they were concerned and would be deemed to have waived the right if they did attend.
    – ohwilleke
    Feb 16, 2022 at 1:51
  • My impression is that this whole answer may have been triggered by an unfortunate choice of tag on the question. The title and text of the question do not mention "right of publicity". It appears that OP may have chosen the tag "right-of-publicity" without knowing its technical meaning -- just guessing that it was relevant to the question about publicly sharing photographs. Then, you (ohwilleke) latched onto that tag and made it the entire focus of your answer, whereas I think it may not be central to OP's actual question.
    – nanoman
    Nov 26, 2023 at 7:51
  • The first sign of potential miscommunication is at the very start of the answer: " 'It seems there is a right to publicly share photographs...taken in public places.' This is a significant oversimplification. Not all public sharing...are[sic] subject to the right of publicity..." This response seems backwards -- OP was talking about the rights of the photographer (or other photo owner), whereas your response is about one specific right of the subject. My guess is that your reading was colored by that (perhaps naively chosen) tag "right-of-publicity".
    – nanoman
    Nov 26, 2023 at 7:52
  • Paraphrasing, OP said <photos can generally be taken and shared, right?> and you replied <no, that's oversimplified, not all photos are subject to this prohibition on distribution> -- kind of a reversal/non sequitur. Then, focused entirely on this right-of-publicity issue (herring?), you said: "The place that the photograph is taken doesn't matter under Washington State Law (and it need not be a photograph)." But OP was asking about photos, and specifically whether the right to take and distribute photos is the same when they're taken "in public places" versus "in a church setting".
    – nanoman
    Nov 26, 2023 at 7:58

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