California law protects a right to privacy as well as a "right to publicity". This is especially so when a person likeness is contemplated to be used for a commercial purpose. I assume you would like to use the person's image for marketing purposes and therefore you must negotiate the right of use. Even if a photograph is in the publc domain there are pitfalls for "commercial appropriation" and even actions for "tarnishment" depending on the context of the use within an ad. Before you pay for any "rights" I would suggest you ensure that you are getting the entire bundle of rights you need for your particular contemplated use. Many attorneys will offer a free and CONFIDENTIAL consultation where you can explore your options as you suggest and perhaps other ways to achieve your objective.
If it is not yours unless the person sells it to you then you cannot gain ownership rights to them. You may use it if it is in the public domain.
This is not a comprehensive answer and it is impossible to provide a meaningful response without a consultation. Call us for more information. 619.797.5456 www.mataelelaw.com
If I understand the question, you simply want permission to use a photo, not necessarily gain 'ownership' rights. If you know what magazine it was published in, I'd start there. If you have no idea at all but it is of a famous person, I'd start with that person's representative. If you have no clue on either front, you could use it until you are sued to stop using it and then pay up in court for the usage...
Thomas A. Schaeffer, Esq. Law Office of Juarez and Schaeffer PO Box 16216, San Diego, CA 92105 (619) 804-4327 www.jslaw.org This posting is provided for "informational purposes" only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principals discussed here may differ substantially in individual situations or in different States.
Be very careful doing this and have an attorney in your area handle obtaining the rights. Usually, the person who took the photograph owns the rights to the photo itself. However, this may not be the case if the photo has been used in any other media (newspapers, magazines, etc.). Also, the person pictured has certain rights. For instance, you cannot use someone's image or likeness for financial gain without their written permission in most jurisdictions. Also, if the person is a minor or is not in a public place, you are likely to run into problems with rights to privacy. California has some very specific laws about this and you should hire an attorney in your jurisdiction to help you.