Nancy Wolff specializes in intellectual property law and new media law and has been an adjunct professor at the Benjamin N. Cardozo School of Law, teaching mass media and entertainment law.

by Nancy Wolff, Esq.

Q: Are there any laws describing the boundaries of digital manipulation to a copyrighted photo? For example, if you alter the facial features of a model in an image without a model release, do they have any rights to prevent the use of the photograph even if it doesn’t look like them? —Lisa S., New York City, via e-mail

A: In looking at the legal rights involved in photo manipulation, you are looking at two laws: copyright law and right of publicity or privacy law. These laws tend to vary from state to state. A photographer, as the copyright owner of a photograph, has the right under federal copyright law to alter a photograph in any way he or she chooses. Photographs that are used for advertising are sometimes altered to avoid violating state privacy or publicity laws.

Most state laws maintain that a person has the right to prevent a photograph of them from being used for advertising or other commercial purposes without consent. For the most part, state laws also require that a person be recognizable.

Consequently, if the person depicted in the photograph is so altered as to be unrecognizable, no privacy or publicity law will be violated if the photograph is used commercially without consent. Of course, some people are recognized by features other than their face, such as a unique tattoo or other identifying features (think Charlie Chaplin and his hat and cane).

“Photojournalists have lost jobs by submitting news photographs that have been enhanced or altered by computer manipulation.”

Celebrities and other personalities may have contractual arrangements with a photographer in which the celebrity or publicist must approve any photograph before publication. The publicists may even require that some alterations be made to enhance the photograph and make the celebrity look more attractive.

No consent is required if the photograph is used editorially, in a newspaper, magazine or online news article, for example. There must be a connection between the article and the photograph. However, news photographs must be accurate, and most publishers have rules that photographs cannot be altered. Photojournalists have lost jobs by submitting news photographs that have been enhanced or altered by computer manipulation. The public needs to trust the integrity of photojournalism, so with regard to images like these, there are ethical constraints rather than legal constraints.

In addition, if a person is altered in a manner that is false and embarrassing, there can be claims for defamation or “false light.” For example, if you combined images and had a politician look like they were associating with a known criminal or prostitute and used it to harm their reputation this could be used as a claim for defamation.

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