Your company believes it has an employee-friendly culture, and it wants to publicize/exhibit/promote/exploit that positive experience in its external marketing and promotional materials and internal correspondence and documents.
You have an archive of photographs taken of past and current employees at company events or employee social media posts, HR headshots, charity events, at work, or out in the community.
You have an upcoming ad in a trade publication, and you want to feature photos of your employees having a good time at a company picnic. That's a great idea. Or is it?
Do you have a written release from your employee granting you the right to use their name and likeness in company materials or any fashion whatsoever? Is permission granted in the Employee Manual or an offer letter? Was this document signed? Were employees even aware that their pictures were being taken? Outside of appearing in the photograph did they acquiesce in any tangible manner to your taking their picture and/or allowing you to exploit it?
Additionally, even if you have their permission, what if you now want to crop the photograph and use Photoshop or AI to modify it in a manner that results in it losing its original context? Did you get permission to make those modifications and adjustments in the signed release?
The right to use an employee's name or likeness falls under what has traditionally been known as a "Right of Publicity" and now is commonly referred to as "Name, Image, and Likeness" (NIL) rights. Of late, there has been a great deal of coverage of NIL rights as they apply to sports figures, particularly college, high school, and now even middle school athletes. Often, people think things like Rights of Publicity only apply to celebrities and famous people, but in fact, the applicable statutes and common law which cover the area have applied these rights to everyone, famous or not.
Even though NIL has recently come to the forefront of public attention, it is not a new legal concept. The idea of Rights of Publicity is over a hundred years old and grew out of the Right of Privacy. The original cases go back to the early 20th century when New York passed the first privacy law in 1903. And the term "Right of Publicity" was first coined in 1953 in a case where a baseball player successfully sued Topps over the unauthorized use of his image on a baseball card.
There is no Federal law covering the Right of Publicity, although trademark law can sometimes come into play. That occurs when one's activities cause the public to believe that there is an association, affiliation, or sponsorship with someone when it does not exist, or that the source of your goods comes from or is linked to a third party when it is not. Using one's likeness when you don't have an affiliation with them to promote your product or services can be a trademark violation in addition to a Right of Publicity violation. If you go on the web, you'll often see celebrity images linked to a product or placed next to it when there is no affiliation, and it's simply a false endorsement. Those are the types of violations that will find an overlap between violating the underlying person's trademark in their own name or image and the Right of Publicity that they might have.
Approximately 30 states have statutes recognizing the Right of Publicity, and the rest seem to cover it under common law. Currently, we are unaware of any state that would not enforce a Right of Publicity under some judicial mechanism.
As you can imagine, having 50 different statutes or common laws covering a right can be confusing and contradictory. However, most of the statutes take a similar, although slightly different, approach. In a nutshell, if one uses someone's name or likeness (will explain likeness in a moment) in any form of trade or promotion of goods or services, it will probably trigger a Right of Publicity claim if permission was not previously obtained.
Let's look at a few statutes to see their reach and scope.
New York:
NY CLS Civ R § 50
§ 50. Right of privacy
A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
NY CLS Civ R § 51
§ 51. Action for injunction and for damages
Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait [fig 2], picture or voice, to prevent and restrain the use thereof; and may also harbor shall I tell good we had a most delightful evening with your son last night sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait [fig 3], picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.
California:
California Code, Civil Code - CIV § 3344
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
Illinois:
(765 ILCS 1075/30)
Sec. 30. Limitations regarding use of an individual's identity.
(a) A person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act or their authorized representative.
(b) A person may not knowingly distribute, transmit, or make available to the general public a sound recording or audiovisual work with actual knowledge that the work contains an unauthorized digital replica.
The statutes quoted above and in nearly all the other states refer to a prohibition on using one's name or likeness without permission, which includes any and all employees, officers, directors, independent contractors, agents used by the company or employed by the company or third parties who might happen to be in the picture. That could also include bystanders and an employee's family and friends. A general rule of thumb would be that if they are identifiable, they are covered by the statute. Blurred people in the background or someone you might need a microscope in order to make out their images under most statutes would not be covered.
A few statutes provide exceptions for "faces in the crowd," but you have to identify your specific state statute and see if the "faces in the crowd" is one of the exceptions to the statute. A "newsworthy event of public interest" in most jurisdictions might also be an exception to the rule. Those exceptions tend to apply to news stories in newspapers or magazines and other similar types of content where there is a public interest, rather than a company's interest, in making those images available. If a business thinks that they might fall under one of those exclusions, it's imperative to check with counsel prior to use in order to ascertain which state laws apply and if the exceptions would cover that particular use. The attorney would need to see the image and the context in which it is being used before they could opine on whether the statute or an exception applies.
Reading these statutes and others shows how ambiguous the definitions of prohibited uses are and how broadly they can be construed. They cover all advertising purposes, including purposes of trade, placement on products and merchandise, selling, and the advertising or soliciting of purchased goods, merchandise, and services. So, a basic read of these types of statutory definitions covers pretty much any activity a business might undertake.
A business might violate an employee's or contractor's rights if the company uses their name and likeness not only on a product or in a traditional ad but also in image advertising. Image advertising is indirect advertising when the emphasis is not on a single product and service, but rather when an organization is using the ad to enhance the company's overall general business or in the community. Examples of this would be where the employees' likenesses are used in "feel-good" pieces that project to the public a positive image of the company, e.g., employees volunteering at a food bank, enjoying a company picnic, rooting for the home team at a company-sponsored baseball game, etc. Since all those uses would advance the interests of the company, they would likely be considered used in trade, advertising, or commercial purposes.
The terms "name and likeness" are referenced in almost all the various statutes. Name is relatively straightforward. But what about referring to somebody by their initials or nickname without an accompanying photograph? That might not be considered a "name," but it could be if the employee might be identified by their initials or nickname, as when there is just one "JJ" or "Junior" or "Rocket Man" on staff. The statutes apply not only to still photographs but also videos, films, digital posts, Tik-Tok, Instagram, or other mediums in which one's name or likeness is captured.
Voices have also been considered a "likeness," so if you're doing an audio presentation or a voice is just in the background, that can also be considered an infringement of a Right of Publicity. Both Bette Midler and Tom Waits successfully sued when imitators mimicked their distinct voices in advertisements without their permission.
The term "likeness" is construed broadly. The race driver Lothar Motschenbacher successfully sued when his racecar was used in an advertisement. Due to the decals on his car, everyone knew it was Motscenbacher's car even though the ad agency blocked out the driver's window so he could not be seen. Vanna White successfully sued Samsung when they ran an ad with a 21st-century version of Wheel of Fortune using a robot in a long, slinky gown and a blonde wig (Note: They had permission from the show but not Vanna). Even though the robot did not look at all like Vanna White, it conjured her image in the minds of those who saw the ad. The cautionary tale here is marketing may be very creative, but that creativity might still cross the line and lead to infringing activity.
We often hear clients saying, "They knew we were taking their picture. Isn't that consent?" The problem with implied consent is that most of the statutes require a written agreement. It is important to remember that these cases tend to come up not when the employees are happily employed, and all is going well. They often arise after an employee has been terminated, does not like the way they're portrayed in the materials, or is looking for a fast buck. Alleged implied permission becomes "he said/she said" and often does not hold up in court even where the jurisdictions don't require written consent.
Fortunately, consents can be very simple. They don't have to be multipage confusing legal documents. They can be a few paragraphs on a preprinted form where once you fill in the blanks, you're good to go. They can even be in an employee manual if the employee signs the document. (Remember, consent must be signed in writing.)
What you need to be careful about with these types of basic releases is that most of them will be a release to use the photograph for a specific purpose.
For example, a release might grant permission to use a name and likeness for the company's annual report. A few years later, someone going through the digital archive finds a picture and thinks it would be great to put up on the company website. That use was not included in the release. The employee was fired a couple of years ago, sees their picture on the website, and makes a claim against the employer for violating their Right of Publicity. The employer pulls out the release only to find out that it was limited to the specific original use. From an employer's point of view, they need to get a broad release for any and all uses, not just the current contemplated use.
Say your employee passed away. Are you in the clear to use their image without permission? Alas, no. All states have post-mortem rights, which vary by state, granting the heirs control of the deceased's image and the ability to grant or withhold permission. The post-mortem rights vary in range from 10 to 100 years, and a few even last indefinitely as long as the rights are commercially exploited.
Since some promotional materials may be seen in many states, and employees or contractors might live in a different state from the employer, multiple state laws may come into play and need to be examined in order to determine if the use is permitted.
The Right of Publicity can trip up even the most well-meaning employer. A simple release and an alert marketing department can mitigate these risks and ensure that a company can use photographs of its employees and staff appropriately.
