Mallory King - March 27, 2020 - Content Licensing, Internet Law, Online Advertising, Right of Publicity- Name & Likeness, Social Media Lawyer
A common form of marketing in the age of social media is the use of pictures and testimonials about customer experiences. This can be a great way to display the services you provide or the goods you sell by showing potential customers a past customer enjoying what you have to offer. However, a business does not have free rein to use images of their customers simply because they feature the offerings of the business. Your customers have rights to privacy and to controlling the use of their identity. Posting pictures and using customer names without authorization can lead to forced takedowns of those advertisements, and even costs in the form of damages paid to those former customers. This can be a great way to advertise, but you must make sure you obtain the proper permissions so you can make use of your happy former customers to attract future business.
Each state recognizes that individuals have a Right of Publicity that generally protects individuals from their name or likeness being used without permission for commercial purposes. This right exists within state statutory and common law, varying in specifics from state to state. However, generally, the right to control one’s likeness stems from the right to privacy recognized in tort law. It is recognized as an invasion of privacy to make use of another’s name or likeness without permission for the purposes of creating some benefit. The right is treated as a property right to one’s name and likeness, and can thus be licensed to others for use like any other intellectual property right. Again, like other IP rights, an individual can also give an exclusive license to another for their name and likeness, and then the licensee can bring an action to protect the name and likeness from being used by yet another entity. There is a clear structure to how this right is treated under the law, and it is crucial that a business examine the relevant statutes and common law in the jurisdictional areas where it wishes to use customer names and likenesses in order to ensure the proper steps are taken in gaining permission, or in otherwise avoiding infringing customer’s rights.
The most obvious solution to avoiding liability for using customer likenesses without permission is to obtain permission for these uses. Depending on the situation, making this request may be a clear addition to the process of creating your advertisements. You may be directly requesting testimonials or taking professional photos of customers using your products or services. It is an easy step in asking customers to participate in these advertising efforts to ask them to sign an agreement giving you a license to use their names and likenesses for this purpose. If you are compensating the customer, a name and likeness clause could be added to their contract, or in any situation, you could secure their online or in-person agreement to your continued commercial use of the materials.
Due to the nature of a lot of social media marketing materials, however, you may not have such a clear opportunity to obtain such an agreement. Photos and comments may be gathered casually and informally, you may want to use photos of large crowds where it would not be feasible to obtain that many permissions, or you may not realize that you want to use the customer’s name and likeness until a much later time. It is still possible to protect yourself in these situations. First, consider which uses will lead to a particular customer being personally identifiable. A general, uncredited comment or an obscured figure in a crowd of many people is not likely to be an infringement on a person’s right of publicity if an observer cannot determine who the person is. Next, make note of all individuals who can be identified, and attempt to make contact and obtain permission. Your license to use a name and likeness can be obtained at any time, but you will want to do this before you actually use the materials. If it is impossible for you to obtain permission from an identifiable person, you should not materially identify that person. However, if you still wish to use these materials, you can edit them for the final advertisement so that the unlicensed name or likeness is removed or is no longer identifiable.
Another solution to the obstacle of the right of publicity is to suggest that customers post pictures of themselves with your product or say positive things about your business on the internet. As your customers are the owners of their own image, they are free to make use of their image independently from your business to advertise your business of their own volition. You will not be able to control these posts or take them whole cloth to use within your advertisements without permission, as these actions will likely still be considered infringements of publicity rights.
However, user generated content can indirectly advertise your business, and you may be able to sway these posts in a direction by communicating to consumers. Some businesses use photo competitions or sweepstakes to encourage customers to spread photos of their brand or goods or to increase the popularity of a branded hashtag associated with their business. Participating in these contests can also allow a business to obtain implied consent to use the images if the rules of the contest include an agreement to licensing the business to use the photos or posts entered. This user generated content can easily be linked to an agreement on your site that allows it to be used as advertising, or is otherwise entirely separated from your official advertisements. This will allow you to share posts of your users without the risk of a customer bringing legal action against you. As social media is still a relatively new frontier, however, the line between what is acceptable and what is not is still blurry, and there are many gray areas that may need further legal assistance to ensure your actions are in compliance with the law that has come before.
If you are a business looking to utilize consumer photos and/or comments for purposes of social media advertising, Traverse Legal’s expert attorneys can help you minimize your risk. Give us a call today.
This blog post contributed, in part, by Traverse Legal Virtual Law Clerk Scott Pehoushek.