This month, we posted about a lawsuit that an NBA Hall of Fame player filed against a company that allegedly used his image to sell products without his permission. Regardless of how that case turns out, it's pretty clear you shouldn't use a celebrity's image in an ad without written consent. But what about cases that are less clear, such as a person in the background of a photo that your company posts on its social media account? A recent NY appeals court decision touches on this issue.
In 2014, a woman attended an event at a DASH, a boutique store founded by Kim, Kourtney, and Khloé Kardashian. The assistant to a stylist for Kim Kardashian published a photo from the event on her Instagram account. Although the photo allegedly focused on the assistant and stylist, the plaintiff appeared in the background. The plaintiff hadn't granted permission for the use of her image and filed a lawsuit alleging, among other things, that the use violated her rights under New York's Privacy Law.
Like similar laws in other states, New York's Privacy Law generally prohibits "[a] person, firm or corporation" from using "for advertising purposes...the name, portrait, or picture of any living person without having first obtained the written consent of such person." The law further states that "a person whose name, portrait, picture, or voice is used within this state for advertising purposes...may...recover damages for any injuries sustained by reason of such use."
Citing pervious cases, the court determined that "the statute is to be narrowly construed" and "strictly limited to nonconsensual commercial appropriation" of a person's name, portrait, picture or voice. The court determined that an image "is used for advertising purposes if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service."
Without much explanation, the court determined that the plaintiff failed to allege that the defendants had "used the plaintiff's name, portrait, picture, or voice within this state for advertising purposes." Reading between the lines, it's possible that the court determined that a casual social media post wasn't the type of ad envisioned by the law or that simply appearing in the background of a photo wasn't enough to constitute a prohibited use.
If you're taking photos of customers at one of your company's events with the intent to post those photos on social media, getting signed releases – or at least posting a sign letting people know that they are going to be photographed – may be good ideas. But this case suggests that the risks of posting an image from an event on social media when you don't have permission from people in the background may not pose a significant risk, at least in New York.
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