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John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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Be Careful Using People Pictures in Publicity

Thursday, June 19th, 2014

Posted on June 29, 2014

The news is popping with famous people suing over unauthorized use of their likenesses for profit.

Former UCLA basketball player Ed O’Bannon is leading a class action lawsuit against the NCAA. He seeks a ruling that college basketball and football players should get a cut of TV revenue.

Video game maker EA Sports and the NCAA just settled similar claims over the use of likenesses of players in video games.

And Michael Jordon, the former UNC and pro basketball player, just won an appellate court victory against a grocery store chain that ran an advertisement in Sports Illustrated praising his career.

But what about ordinary Joes shown in everyday advertising? For example, what if your company’s Facebook page includes pictures of people in your store or at your company’s community events?

This implicates the “right of publicity.” Generally speaking, it means you cannot use someone’s name or likeness (such as a picture) for a commercial purpose without permission.

This law varies from state to state. You need to worry about not just the law of your home state but also the state of residence of anyone you depict. Still, some general observations apply.

Just this month, a New York plastic surgeon suffered a painful lesson here. He posted on his promotional website before and after pictures of a patient. The patient had given written permission to use those photos for medical research and education but not for other reasons.

When the patient complained, the doctor took the pictures down. But the patient still sued, seeking relief including punitive damages. The court held that the right-of-publicity violation was so clear that trial was unnecessary. The only issue is how much the surgeon will pay.

Virginia’s right-of-publicity statute is modeled on New York’s, including making punitive damages available where a defendant knowingly uses someone’s likeness in advertising without permission.

For businesses doing publicity, the most important thing is to get permission in writing, in advance of publication, from people shown in photos or named:

• Beware of consent forms you find on the Web. Those agreements weren’t prepared to address your situation. You may not be able to spot the potholes. For example, in some cases you’ll need both a publicity consent and a trademark license.

• If you can’t get a proper consent signed, at least get some form of written permission, such as by email, text or messaging service on a social-media site. But don’t kid yourself that such informal consent will cover you as well as a custom-prepared legal document.

• Unless you give real value for a publicity consent, such as cash, the person giving consent probably can revoke it later and stop future use of his likeness.

• Get consent from a parent or guardian when depicting minors.

Other tips for businesses engaging in publicity:

• You probably need to get consents from those shown when you post pictures on your company’s promotional social media sites even if the postings are just fun shots, such as from your store or community event. If you don’t, realize you’re taking a chance.

• Using someone’s picture or name without permission might be O.K. if it’s a fair use, such as a use necessary for reporting news or commentary. Whether something is a fair use is a tricky, fact-specific analysis. Consult a lawyer before relying on it. It’s hard to achieve fair use in the context of advertising or promotion.

• Be honest about the reason for taking someone’s picture if you intend to use it commercially.

• Watch out for continuing to use pictures of people who are now former employees. It’s a good idea to get written permission from current employees also.

• If you use unionized professional talent in a photo shoot, look into whether you can mix in non-unionized people, even if they are volunteers.

• Side note to ad agencies: If you participate in the creating or publishing the commercial material, you might be on the hook in addition to the company doing the advertising.

And here are a few notes for people who get captured in publicity without giving permission:

• Don’t get amped up if you are just a face in the crowd in a picture. An incidental appearance probably won’t give you a worthwhile claim.

• If your depiction is fuzzy or masked so that only you know it’s you, that probably won’t cut it.

Get the picture?

Written on June 19, 2014
by John B. Farmer
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