Social media’s hidden litigation threat: the right of publicity


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. 

Disclaimer:  I am not an attorney.  Nothing in this blog post purports to offer legal advice.  Consult the advice of a competent attorney licensed to practice in your state before making decisions about any legal matter. 
Cartoon credit:  The cartoon used to illustrate this blog post was licensed for use on this blog from Cartoonstock.com; all other rights remain with the copyright owner.

About debmcalister

I'm a Dallas-based marketing consultant and writer, who specializes in helping start-up technology companies grow. I write (books, articles, and blogs) about marketing, technology, and social media. This blog is about all of those -- and the funny ways in which they interesect with everyday life. It's also the place where I publish general articles on topics that interest me -- including commentary about the acting and film communities, since I have both a son and grandson who are performers.
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4 Responses to Social media’s hidden litigation threat: the right of publicity

  1. Pingback: Copyright Infringement, Plagiarism, and Client Demands | Marketing Where Technology Intersects Life

  2. Pingback: The Legal Do’s and Don’ts of Social Media | Marketing Where Technology Intersects Life

  3. As a private investigator, I find social media quite useful as a tool to find out useful tidbits of information regarding the subject of an investigation. I can think of one specific hard core case where I had been asked to track down a truck driver (and the 18 wheeler he had defaulted on), who was constantly on the move. Anyway, the individual in question had convienently posted on his facebook where he was staying for the holidays (one of his relatives). The next morning, my happy client had a reposession company arrive and pick up the truck.

    There are several other instances I could make mention of, but it boils down to the same word of advice: Be careful what you put out there on social media for the world to see.

    • debmcalister says:

      Interesting comment — thanks! I’ve read stories about dumb criminals posting photos of stolen property on Facebook and about fraud investigators using social media photos to trap people who filed false insurance claims. And we’ve all read about thieves using social media to find out when people are traveling. I just hadn’t thought of how it could be used in debt collection or repossession cases, too. Thanks!

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