Understanding Photography Rights in Louisiana: The Allen Toussaint Legacy Act and Your Commercial Use of Public Images
If you’re a photographer in Louisiana or anywhere else in the U.S., you’ve likely found yourself asking: Can I take a photo of someone in public and sell it? Or perhaps you’ve wondered, What if I use a person’s image commercially without their permission? In this article, we’ll unpack the complexities surrounding photographers’ rights, particularly in Louisiana, and how the Allen Toussaint Legacy Act changes the game for using people’s likenesses in commercial projects.
What is the Allen Toussaint Legacy Act?
Before diving into the details of your rights as a photographer, let's first talk about a significant law in Louisiana that impacts right of publicity. The Allen Toussaint Legacy Act, passed in 2022, made Louisiana one of the few states to introduce a statutory right of publicity. This law allows individuals—and their estates—to control the commercial use of their name, likeness, and voice.
In simple terms, if you’re planning to use someone’s image for a commercial purpose, you need to have their permission—or face potential legal consequences. The law applies to both living individuals and those who have passed away, with the right to publicity lasting for 50 years after death.
The Key Points of the Allen Toussaint Legacy Act (ATLA)
Protects Identity: Covers name, likeness, image, voice, and signature.
50-Year Term: The rights last 50 years after an individual's death (or until three years of non-use).
Applies to Louisiana Domiciles: The law protects anyone who is from Louisiana, even if they’re no longer alive.
Posthumous Protection: Yes, the law even protects deceased individuals, such as the estates of iconic New Orleans artists like Allen Toussaint.
How Does This Affect Photographers?
As a photographer, the ATLA introduces new legal complexities, especially when dealing with recognizable faces. While taking photos of people in public places is still generally legal, commercializing those photos without proper consent could put you in hot water.
Here’s what you need to know:
1. Can You Photograph People in Public?
The short answer: Yes—but there are a few caveats.
In public spaces like streets, parks, and even some private events (think concerts or public rallies), you are typically allowed to take photos without asking for permission. The key here is the concept of “no expectation of privacy”. When someone is out in public, they are not generally afforded the same privacy protections as they would be in their home or other private spaces.
However, the line blurs when you want to use that photo for commercial purposes.
2. The Right of Publicity: Why Permission is Necessary for Commercial Use
While copyright law grants photographers ownership over their work (which includes the right to sell, display, and distribute photographs), the right of publicity governs how an individual’s likeness can be used commercially. This includes uses like:
Advertising campaigns
Product endorsements
Merchandising (e.g., T-shirts, posters, and other branded goods)
Social media promotions
So, what’s the problem?
Even though you own the copyright to your photos, using someone’s likeness for commercial purposes without their permission could violate their right of publicity. This is where the Allen Toussaint Legacy Act comes into play, particularly for subjects who are Louisiana residents or those whose estates are in Louisiana.
For example, if you photograph someone at a public event and later use their image in a commercial advertisement without their consent, you could face legal action under the ATLA.
3. Model Releases: Your Best Friend in Commercial Photography
The easiest way to protect yourself when planning to sell or license an image for commercial use is to secure a model release. This legal document allows you to use the subject’s likeness for specific purposes, including the right to sell the image commercially. Without a signed release, you’re walking a fine line.
Here’s what your model release should include:
Name of the subject (and any other people in the image)
Specific use: What the image will be used for (e.g., advertising, print, web)
Compensation details (if applicable)
Duration of use: How long they’re granting permission
Location of the shoot and any relevant restrictions
By having this release in place, you’re not only protecting yourself but also showing respect for the person whose likeness you’re using.
4. What Happens If You Don’t Get Permission?
Under the Allen Toussaint Legacy Act, if you use someone’s likeness for commercial purposes without their permission, you could be sued. Here’s how it works:
Injunctive relief: The individual (or their estate) can ask the court to stop the unauthorized use.
Damages: You could be liable for damages, including actual damages (profits the individual could have made) and possibly punitive damages (financial penalties meant to deter similar behavior).
The penalties can vary depending on the nature and extent of the unauthorized use, but it’s better to avoid these headaches by getting proper consent.
5. What If the Person Is Deceased?
This is where the Allen Toussaint Legacy Act really changes things. Even if a person has passed away, their right of publicity survives for 50 years after their death. So, if you’re using an image of a deceased individual who was a Louisiana resident, you’ll need to contact their estate or representatives to get permission.
For example, let’s say you’re selling a photograph of Allen Toussaint—who passed away in 2015. Under the ATLA, you can’t just slap his likeness on a T-shirt or promotional material without permission from his estate or representatives. If you do, you could face legal consequences.
6. What About Editorial Use?
There’s a difference between editorial use and commercial use. If you’re using an image for a news article, documentary, or blog post that’s not directly promoting a product, the need for a model release may be less critical.
But, as a general rule, if your photograph is used in a way that promotes a product or service, you’ll need that release—especially if the subject is identifiable and the image is used to sell something.
7. Wrapping It Up: What Does This Mean for Photographers?
So, what’s the bottom line for photographers, especially in Louisiana?
Know the law: The Allen Toussaint Legacy Act gives people more control over their name, image, and likeness. It’s important to be aware of this if you're working with identifiable subjects.
Get permission: Whether it's a model release or clearance from an estate, always secure the proper permissions if you’re using someone’s likeness for commercial purposes.
Avoid the risks: Not getting the proper permissions can lead to lawsuits, which are both financially damaging and time-consuming.
Consult a lawyer: When in doubt, seek legal advice, especially when working with public figures or planning to sell images for commercial gain.
By following these practices, you’ll be able to create and monetize your photography with confidence, knowing that you’re respecting both the law and the rights of the individuals you photograph.
