You were advised in Chapter 20 that whenever possible you should obtain the consent of the person about whom you are writing and that the best way to verify consent had been given would be by the execution of a written release. The same holds true for matters of privacy. It was also suggested that although verbal consent is enforceable, since you may have to prove you received permission it is best to have the consent in writing. However, if you obtain oral permission, you may want to record the subject, but if you do this, make certain the subject agrees to the recording. Having witnesses present to a verbal consent will also be helpful.

If you prepare a written release to be signed, it is best that you do not write it yourself. There are standard forms you can utilize and customize for your specific purpose. You can also consider having an attorney who is familiar with publishing law prepare a release for you or you might obtain a form from your publisher.

Releases for Photographs

As a writer you may be wondering why you would ever need to be concerned with releases for photographs. But the fact is that nonfiction writers frequently have photographs contained in the body of their work — especially journalists writing for newspapers; freelancers writing for magazines; and authors writing biographies and histories. So you do need to know how the law of privacy and right to publicity pertains to photographs.

Since photographs are subject to copyright law, you will need permission from the owner of the copyright and obtain a release. Insofar as publicity and privacy is concerned, you should obtain a release from any person recognizable in the photograph so long as the photo is being used for commercial purposes. If a person is a public figure or public official, you will only need a release if there is a commercial purpose to the photograph.

Photographs of public places and people whose presence is incidental to the photograph do not require releases. However, the photo of a unique building such as an historic landmark will necessitate a release. As for sex and nudity, it is always wise to obtain a release from the individuals in the photograph.

If a release is sought from a minor, you need to obtain consent from a parent or guardian. The voting age of eighteen has nothing to do with contract law and the ages of maturity vary among the states, so it is prudent to secure permission from a parent or guardian whenever the person is under twenty-one years of age.