A Picture is Worth a Thousand Words: But It Could Cost You Much More

When dealing with photographs taken of other people, prudence requires that we consider the legal rights of the subject and the ethics of publishing the photo without their permission. Since the advent of digital photography, photographs have played a big role on the internet.

crowded shopping mallClick. Upload. Post. Never has it been so easy and inexpensive for businesses seeking to ramp up their advertising and marketing efforts to do so by simply uploading photographs that may depict other people. In most cases, such use is, in plain language, illegal. Using the photos of others without their permission could violate their right of privacy, or worse.

There is one answer which universally answers every question ever put to a lawyer, “It depends.” The correct answer is no different when clients ask me whether they can use photographs depicting actual people in promotional materials and literature without their permission. It depends on the photograph, the photograph’s purpose, how the individuals are depicted in the photographs, the nature of the marketing material, how recognizable the people in the photograph are, the state involved, and other variables. Suffice it to say, however, that those who wish to avoid unnecessary risk and potential liability, should become familiar with the privacy laws of the state they are in.

Nearly every cell phone has a high-resolution camera and more and more people are taking photos in public places. The picture might be of something as benign as a parade or as volatile as a riot. Regardless of the reasons, the rules for photographing in public places are the same. The First Amendment protects your right to take a photograph or video in a public place. This includes a photograph of the Lincoln Memorial or your dog walking down the sidewalk. However, this constitutional protection is not without limits. The general rule is that if you’re in a public place – if you see it, you can photograph it.

However, you cannot use a telephoto lens to photograph something or someone on private property while you are standing on public property, if the other person has an expectation of privacy. You also cannot take photographs in bathrooms, even if public. If a private property is open for business (e.g., restaurant, cruise ship, etc.), you can take photographs unless it is prominently displayed that such photographs are forbidden. You can record accident scenes, police conduct, and even TSA checkpoints, as long as you are not interfering with police or medical professionals. Photography on private property without permission constitutes trespassing.

You also cannot use someone’s likeness for commercial purposes without their express permission. The photographs you can legally take in public places also may not be used for commercial purposes without the permission of the subjects in the photograph. This is why reality television shows often blur the faces of people in the photographs from whom they have no written permission. The subject’s consent is usually needed for publishing a photograph of an identifiable subject taken in a private place. You also cannot publish a photo which paints somebody in a false light or which gives away private information about somebody. An example would be somebody walking into an Alcoholics Anonymous meeting.

Most issues regarding using photographs taken of others involve privacy. Using one state as an example, Wisconsin recognizes a right of privacy. Wis. Stat. Ann. § 995. Under the statute, an “invasion of privacy” includes:

The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.

That said, Wisconsin’s common law provides for certain exceptions such as: Newsworthiness or Public Interest Exception and Incidental Use Exception. Clearly, using a photograph for commercial purposes would not fall under the latter exception.

The Incidental Use Exception depends on specific facts. Under this exception, the mere incidental commercial use of a person’s name or photograph is not actionable. Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013). Wisconsin requires a substantial rather than an incidental connection between the use and the defendant’s commercial purpose. Stayart v. Yahoo!, Inc., 2011 WL 3625242 (E.D. Wis. 2011). In other words, there must be a “direct and substantial connection between the appearance of plaintiff’s name or likeness and the main purpose and subject of the work.” Netzer v. Continuity Graphic Associates, Inc., 963 F.Supp. 1308 (S.D. N.Y.1997). This exception is fact specific.

The fact remains that one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. Restatement (Second) of Torts § 652 C. Section 46 of the Restatement (Third) of Unfair Competition defines right of publicity as “one who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability for damages or injunctive relief.” A number of states recognize this “right of publicity” in some form. Usually, the person in the photo will have to show that the defendant used the plaintiff’s likeness, without consent, to obtain some sort of advantage, commercial or otherwise. This normally will not include the use of a person’s likeness in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to commercial purposes.

In conclusion, the safe route for anybody wanting to use photos depicting other people is to seek their permission. To the extent that they can’t or it proves onerous, you must rely on the Incidental Use Exception. However, there is risk associated with this and whether liability follows will depend on the specific facts involved. Some helpful tips to keep in mind: you should lean towards selecting photos where the people are not as recognizable; use captions that tend to describe the places/activities captured and not the people; the smaller the pictures the better (maybe use a collage style approach to shrink the photo sizes); use no references to the names of the people in the picture; use photos that empathize locations rather than the image or likeness of the persons; and refrain from excessive reposting of these pictures. Even with all of these precautions, one cannot definitely say that a court will not find such unpermitted use to be against the law.