There’s no doubt that the idea of a parent threatening a social media savvy teen with an embarrassing YouTube video is funny. But did you know that you could be liable for posting embarrassing photos of your friends or family members on a social media site?
According to the Right Of Publicity website, the laws on the subject cover the use of the “name, image and likeness” of a human being — famous or not. But the actual rights vary from state to state and country to country. In Indiana, for example, the law protects the property interest inherent in an individual’s “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms.”
Basically, what it means is that you can’t use the “name, image and likeness” of another person for commercial purposes without their consent. But it isn’t always clear when social media is commercial and when it isn’t.
For instance, YouTube, Facebook, Twitter, LinkedIn and Google+ all sell advertising. Does that make all photos posted on those sites “commercial”? Evidently, it does in the 19 states that recognize the right of publicity via statute (California, Florida, Indiana, Illinois, Kentucky, Massachusetts, New York, Nebraska, Nevada, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin).
Most of the court cases filed have involved famous people because famous people have the most to lose from having their name or likeness associated with a commercial entity. But more and more lawyers are taking up the cause of ordinary people who believe that their right of publicity — and, not inconsequentially, their right to personal dignity and privacy (though those “rights” aren’t spelled out in the statutes) — have been violated.
So what should a social media user, blogger, or webmaster know about the right of publicity? First, if you are taking photographs in a place where people have an expectation of privacy, get written permission. If you’re taking pictures in a public place, focus on wide crowd shots where individuals are readily recognizable.
Second, remember the golden rule. If you wouldn’t want YOUR name and photograph used in a specific way, don’t use someone else’s photo that way. This is especially true of photos you take from photo sharing sites like Flickr or morgueFile. If you’re writing a post about bad customer service, don’t pick a photo from a public photo sharing site and use it to illustrate your blog post — it implies that the person pictured was responsible for the bad customer service, and that isn’t true. (Even if you do take a photo of someone you believe IS guilty of bad customer service, posting that photo — especially with derogatory comments — is probably out of line without a signed photo release.)
Context matters a lot when it comes to using someone’s name and likeness. Few people mind being photographed when they look great, are winning a prize for something they’re proud of, or standing next to their life-long idol. But no one likes being ridiculed, teased, or used as a “Glamour Don’t“. (There’s a reason those photos are always unrecognizable, and there’s never a background that would give away the location where they were shot!)
Third, never, ever post a photograph of anyone under the age of 21 without written consent from their parent or guardian.
Last, but not least, if you are asked to take a photograph down — even if it’s a mild-mannered request (“Oh, I wish you hadn’t posted that”), take it down IMMEDIATELY, and apologize profusely and sincerely.