Using Employee Pictures and Related Items Without Consent

The following is an article reprinted with permission from the upcoming Summer 2008 edition of The WWR Letter: 

Using Employee Pictures and Related Items Without Consent

By: A.J. Ober, Esquire

The rapid development and use of the Internet and high-speed communication devices such as BlackBerrys and camera phones over the past decade has given renewed rise to concerns regarding privacy rights. In an instant, a picture can be broadcasted around the globe, virtually unstoppable, and without consent from the pictured party. Due to the ever-increasing number of ways personal information can now be appropriated, individuals have grown more protective of personal attributes such as their name, picture or likeness.

How many times have you seen the candid pictures of a wise senior executive or a fresh-faced junior associate used in a company’s advertising campaigns? The people featured in those ads may be employees of the company and often are, since use of their pictures typically comes at little or no cost to the company. While this appears harmless enough, using these pictures may result in an actionable claim against the employer for a violation of privacy rights.

For instance, New York’s Civil Rights Law § 51 gives a plaintiff a right of action if his/her name, portrait, picture or voice is used for advertising or trade purposes without written consent. Virginia and Utah have also enacted laws, modeled after New York, which statutorily protect a person’s right to privacy. New York’s highest state court awarded damages for invasion of privacy when Defendant Chemical Bank photographed its employees and used the photos for advertising purposes. The Court cited § 51 and held that absent written consent from the employees, use of the photos was an invasion of privacy. See Caeser, et al. v. Chemical Bank, 66 N.Y. 2d 698 (1985).

A majority of states including Ohio, Pennsylvania, Michigan, Illinois and New Jersey have judicially recognized the right to privacy in case law. However, most states have not codified this right. Nevertheless, state court rulings across the country have been consistent with Restatement (2ND) of Torts § 652C, which provides “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 privacy.” 

In one case, a New Jersey Plaintiff employed by Kodak gave Kodak permission to use his family photo in a publication on how to print pictures. Condecor, another company in the photo industry, copied the picture from Kodak’s publication and used it in picture frames and pricing catalogs. Condecor did not seek consent from the Plaintiff or Kodak and alleged that the use of the picture was incidental, and thus not an invasion of privacy. The Superior Court of New Jersey enforced the Plaintiff’s privacy right against Condecor and reasoned that the photo was used for trade purposes, as the photo was used inside frames that were offered for sale. The Court also noted that the Plaintiff’s consent to Kodak would not extend to Condecor since the Plaintiff did not contemplate Condecor’s use at the time consent was given to Kodak. See Faber v. Condecor, Inc., 477 A.2d 1289 (1984).

In another case, a Georgia man’s insurance company used his picture in a newspaper advertisement for life-insurance, without consent. Georgia’s Supreme Court held that publication of one’s picture without consent, in an advertisement, for the mere purpose of increasing the profits and gains of the advertiser is an invasion of privacy. See Pavesich v. New England Life Ins. Co., et al., 122 Ga. 190 (1905).

The Missouri Court of Appeals similarly protected one’s right to his/her picture. The picture of a five-year old boy was used by a jeweler to advertise his store and sell merchandise. The Court declared that one’s own picture is a property right of material profit and use without consent deprives one of their rights to property and privacy. See Munden v. P.S. Harris, et al., 153 Mo. App. 652 (1911).

Without question, courts have actively and unequivocally protected privacy rights when names, pictures, likenesses, etc. are used without consent. It should be noted that a Plaintiff is not required to allege nor prove actual damages to be awarded injunctive relief. If damages are proven, however, the majority of jurisdictions will also award both actual and punitive damages.  Some courts have even gone so far as to order a public apology and/or retraction, which may prove costly to an employer.

In sum, an employer is best served by always obtaining written consent from an employee when using the employee’s name, picture, voice and/or likeness for marketing or advertising purposes.   Lastly, the employer should be conscientious to obtain consent each time a picture or similar item is reused for a new or different purpose.

A.J. Ober is an Associate in the Legal Action Recovery department of the Philadelphia office. He can be reached at (215) 599-1500 or aober@weltman.com.