Molina

Daniela Molina“Who owns your image?” (2012)

Daniela Molina is a professional illustrator and designer. Born in Mexico, she currently resides in Toronto.

Her Facebook profile picture is here used without her permission in a cheap attempt to get you to read this report.

Who owns your online image? Ronald B. Standler writes, “I suspect that most people believe that they have more rights to privacy than the law in the USA recognizes”. Most of us expect that personal information disclosed in what we consider a private place is protected under copyright law. But in fact there is relatively no protection for personal information (information being broadly interpreted to include images, videos, facts, etc.) that a person has voluntarily disclosed in a public place (social networking sites, for example). In the past, invasions of privacy could be easily classified and resolved as things such as trespass or eavesdropping, but the evolution of modern technology has “made for a delay in recognizing privacy as a fundamental right in the US” (Standler, 1997).

In his classic work on U.S. legal torts, William Prosser identified four basic kinds of privacy rights:

  1. Unreasonable intrusion upon the seclusion of another, for example, physical invasion of a person’s home without person’s consent, etc.
  2. Appropriation of a person’s name or likeness, which is the one that is most commonly associated with the unauthorized use of online content.
  3. Publication of private facts, also commonly associated with unauthorized use of personal online content. For example, income tax data, sexual relations, personal letters, family quarrels, medical treatment, photographs of person in his/her home.
  4. Publication that places a person in a false light, which is similar to defamation. A successful defamation action requires that the information be false.

Of all of those mentioned, only the second of these four rights is widely accepted in the US. Prosser mentions that in most legal precedents,

successful legal cases of this right commonly involve the defendant’s use of a person’s name or likeness on a product label or in advertising a product or service. A similar concept is the “right of publicity” in Restatement (Third) Unfair Competition §§46-47 (1995). The distinction is that privacy protects against “injury to personal feelings”, while the right of publicity protects against unauthorized commercial exploitation of a person’s name or face. As a practical matter, celebrities generally sue under the right of publicity, while ordinary citizens sue under privacy. (quoted in Standler 1997)

While there are many examples of traditional legal cases where a person has sued and won because of unauthorized use of their information for commercial gain, there are few legal precedents for unauthorized use of personal information posted in an online site for commercial gain, and even fewer for unauthorized use of content posted online and then re-used online for non-commercial gain.

The first known case in North America of the unauthorized use of personal information dates back to 1902, when Abigail Roberson sued Rochester Folding Box Company for $15,000. She lost the case because there was no law regulating the use of private information and personal characterization at that time. This case is an example of an individual suing a company for using his or her image in a way that makes it seem as though they are endorsing the product. Even though there was no real insult or disrespect, she sued because her picture was used for obvious commercial gain on posters advertising Franklin Mills Flour. The posters were placed in public places without her knowledge or consent (see Banner 2011). Even though she lost, Roberson’s case served as an example to bring to light the importance of regulating privacy laws, and the next year the New York State Legislature passed the first privacy statute.

But with emerging new technologies, cases like these have become increasingly difficult to judge. Individuals who find their information being used for commercial gain by a company might find it more and more difficult to present a successful legal case against the company, since more often than not the content being used by these corporations was posted and found online on public websites. What we think is sharing personal information in a private environment is not viewed the same way by the law.

For example, Alison Chang, a 15-year-old student from Dallas, is suing Virgin Mobile for using a photo she had posted on Flickr, a well-known photo-sharing social networking site. The photo caught the eye of an ad agency in Australia, and Alison later appeared on a billboard in Adelaide as part of a Virgin Mobile advertising campaign. The image used is accompanied by a mocking slogan. “According to the ad, Alison is the kind of loser ‘pen friend’ (pen pal) whom subscribers will finally be able to ‘dump’ when they get a cell phone” (Noam Cohen, 2007).

Alison’s image had been uploaded to Flickr by the photographer Justin Ho-Wee Wong, Alison’s church youth counselor. The photographer’s work carried a license from Creative Commons. The license he selected allowed the photographs to be used by anyone in any way as long as Mr. Wong was credited. This case is particularly tricky because, while Mr. Wong may have given away his rights as a photographer, Allison did not give away any permission for them to use her likeness.

There are many similar cases of people misusing Flickr photographs. Like the case of an Icelandic woman who says an online gallery sold her work without her approval or a German photographer who says a Norwegian political party used a photo of her sister in its materials also without permission. (Cohen, 2007)

These examples constitute legitimate cases under US law because the two basic pillars of the law regulating legitimate use of another’s personal photo (appropriation and the right to publicity) give the subject the right to dictate the use of his or her image. In the United States, it is illegal to use another’s name or likeness for commercial purposes without consent.

Nolo.com, a recognized legal advice website, mentions that you can stop the use of your image (online use included) on three grounds – invasion of privacy, violation of right of publicity, or defamation:

Invasion of privacy can occur if you are portrayed falsely and in a highly offensive manner. For example, your photo was posted at America’s Most Wanted’s website, and you are not wanted – by the law.

Another reason to stop the use is known as the right of publicity. This occurs if your image is used for commercial purposes such as to sell products or to imply that you endorse a product. The public must be able to identify you in the photograph.

You can also stop the website use if the photo defames you — that is, it creates a false impression and injures your reputation. For example, it would be defamatory to doctor a photo to make it seem as if you were shoplifting. The fact that an unmodified photo is unflattering is not enough to claim defamation. The photo must falsely portray you and must cause people in the community to think less of you. (NoLo.com 2012)

So, for example, cases where there was no commercial use or gain but simply use of a personal image without consent might also have a valid claim under U.S. law. For example, when someone creates a false profile on a social networking site and uses someone else’s name or photograph. In these cases, the person whose name or likeness is being used improperly is not an account holder and has not given consent. Even though the law is not settled on this point yet, it appears that a person whose name or image is used in a false profile may have a valid legal claim for misappropriation under the same kind of privacy statute protecting the cases mentioned before.

But there are arguments to be made against all of the cases mentioned in this report. Above all, these cases have sparked discussions in the US over whether this can be considered something protected by the First Amendment, and some attorneys claim that online bashing through fake profiles or even using a person’s likeness or opinions for advertising without their consent is protected under the right to free speech. This all-important Amendment, and the related laws of many states in the US, allow the unauthorized use of people’s likeness, quotes or name in works that are considered “creative” or forms of entertainment (such as acts of parody, art works, etc). (Citizen Media Law Project, 2008)

There is also an exception called “truthful advertising of your own work.” This means that when you are writing an article or piece on someone, you are free to use their name or image to promote your article in a limited manner. (Citizen Media Law Project, 2008)

And then there is the matter of the ”statute of limitations”, a term used by courts to describe the maximum amount of time a person can wait after the events they are suing over took place before filing a lawsuit.  If enough time has passed since the image was used, the lawsuit or case may be considered irrelevant (in cases of misappropriation and right of publicity, it can be anywhere from one to six years). Under U.S. law, these could be valid causes for the dismissal of a plaintiff’s claim of misappropriation and violation of the right of publicity.

But the most common dismissals in cases against unauthorized use of a personal image, especially if it wasn’t used for gain, are thanks to the social networking sites themselves. Many sites have clauses in their terms of use that help protect against claims of misappropriation and right of publicity, and thus leave the user little opportunity to make valid copyright infringement claims against the companies or individuals misusing their image:

By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. (previous version of Facebook Terms and Conditions, quoted in Johnson 2009)

So if the social networking site presents a set of terms like these, there is little a person can do to stop the misuse of their personal information, whether it be for commercial gain or otherwise, and the social network relinquishes all responsibility to aid in stopping this kind of conduct.

A Facebook FAQ warns: “If you live in a country where the law does not require the removal of unauthorized photos for privacy reasons, including the United States, we will not remove unauthorized photos at your request. You may want to consider contacting the user who posted the photo in order to request that it be removed.”

Answers.com suggests that the best course of action is to contact the person or company misusing your image, along with the administrator of the Web site where it is being misused, and let them know the photos being used are not authorized. Unless whoever is distributing your image can prove that they own the copyright, they’ll have to remove them or you can press legal action (in the United States, at least).

But nothing need be done by an offender until you take them to court and a judge gives a final ruling whether the use of a photograph is fair or not. As Answers.com wryly remarks, given the haziness of the current laws on such matters, “[w]hether you want to spend the money on legal fees or not, that is another story” (Answers.com, 2012).

Works cited

Answers.com (2012). Wiki.Answers.com. Retrieved November 20, 2012, from http://wiki.answers.com/Q/What_can_you_do_if_there_are_unauthorized_pictures_of_you_on_the_internet

Banner, Stuart   (2011) American Property: A History of How, Why, and What We Own, excerpt retrieved  November 2012 from http://harvardpress.typepad.com/hup_publicity/2011/08/who-owns-your-face.html

Citi Media Law. (2008, July 30). Citimedialaw.org. Retrieved November 21, 2012, from http://www.citmedialaw.org/legal-guide/using-name-or-likeness-another

Cohen, Noam (2007). “Use My Photo? Not Without Permission,” NY Times. Retrieved November 21, 2012, from http://www.nytimes.com/2007/10/01/technology/01link.html?_r=0

Johnson, Gregory Paul (2009). “Facebook Terms of Use Policy on User Content Posted on the Site – Copyright Usage Ownership.” Retrieved November 2012 from http://www.resourcesforlife.com/docs/item1816

Keeran, H. (n.d.). ehow.com. Retrieved November 20, 2012, from http://www.ehow.com/list_6454545_personal-photos-copyright-laws.html

NoLo. (2012). Nolo.com. Retrieved November 21, 2012, from http://www.nolo.com/legal-encyclopedia/question-unauthorized-use-of-photo-28285.html

Photo Attorney. (2007, September 21). Photo Attorney. Retrieved November 20, 2012, from http://www.photoattorney.com/2007/09/is-unauthorized-use-of-your-photograph.html

Standler, R. B. (1997). Privacy Law in the USA. Retrieved November 20, 2012, from http://www.rbs2.com/privacy.htm