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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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
