Avoid Legal Pitfalls: Personality Rights and Copyright in Business Photos
By Valerie A. Walker | Related Practices: Employment and Intellectual Property
Most states recognize that a person has a right to prevent others from unauthorized commercial use of their identity. Washington State has a specific state statute governing “personality rights,” which pertains to the use of an individual’s “name, voice, signature, photograph, or likeness.” (Chapter 63.60 RCW) For example, under this Washington law, it would infringe a person’s personality rights to use a photo of that person for purposes of advertising goods or services, unless that person’s consent was secured.
Many businesses promote their goods and services on social media with images of their workplace and employees. In light of Washington law, if businesses intend to post photos of individuals in the course of promoting the goods or services of the business, they may want to consider the extent to which the photos feature any particular individuals and assess whether consent should be secured. To the extent that no one person’s personality rights are being leveraged for commercial purposes, e.g., the image depicts a crowd of people that are mostly not identifiable or at least not the focus of the picture, the less likely that personality rights are at risk of infringement. Where businesses contemplate using photos of employees for marketing purposes, they should consider securing employee consent for such use at the start of the employment relationship and may seek more targeted consent subsequently in the event that any given marketing campaign features a particular employee.
Aside from personality rights, the question may arise as to who owns the copyright to the photo at issue. The general rule is that the individual who created the copyrightable work owns the copyright in that work, but there is an exception where the work is “made for hire.” (17 U.S.C. § 201) If, for example, an employee took a photo within the scope of their employment, that would qualify as a work made for hire, and the employer would own the copyright and could publish the photo on social media without triggering a copyright issue. If, however, there is a question as to whether the employee took the photo outside of the scope of their employment, the employer should consider securing a release from the employee prior to publishing as a precautionary measure.
Another scenario for employers to be prepared for is if an employee takes photos at the employer’s facility against the employer’s wishes (outside the scope of their employment). Depending upon the contents of the photos, this could potentially raise concerns about the protection of the employer’s trade secrets and other confidential information or concerns about the privacy of any employees who are depicted in the photos. That said, employers should avoid enforcing a blanket photography ban because this could violate the National Labor Relations Act to the extent it chills employees’ protected concerted activity. Employers should instead consider a more tailored approach that assesses the purpose of the photography at issue so that the employer may better balance the various competing interests.
Navigating personality rights and copyright issues can be complex, and the stakes for businesses are high. If you have questions about how these laws apply to your organization or specific marketing practices, we strongly recommend consulting with your legal counsel to ensure compliance. For additional guidance or support, feel free to reach out to the Stokes team—we’re here to help you protect your brand while minimizing legal risk.
This document is intended to provide you with general information and is not intended to provide specific legal advice. If you have questions about the above please contact a member of the Stokes Lawrence employment group or intellectual property group.
