Pamela Layton McMurtry opened a newspaper to find her family’s photo—her husband, herself, and their two young children—in an ad for a photographer she had hired to take a family portrait. “I was livid and called the photographer, who told me it was his property and he could use it as he wished,” she said, “That was years ago, and I don’t know how the laws have changed, but I do know that parental consent is required to publish photos of children under 18.”
From social media to Google Street View, the chances that you’ll spot an unauthorized photograph of yourself are greater than ever. When you do come across such an image, can you do anything about it? Or does a photo belong to the person (or company) that took it?
“This is an incredibly complex question that involves everything from constitutional law to property rights,” says photographer Ron Rovtar. “Millions of photos are published legally every day without the knowledge or approval of the subjects.” Rovtar explains that businesses depend on making the right decisions about image usage. “There is much potential legal liability attached to the publication of a photo.”
Who owns the copyright?
This one is fairly easy to answer: the photographer owns the copyright, unless the photographer is an employee hired to take pictures (like a newspaper photographer) or if the photograph was taken under a contractual agreement that stipulated it was made as work for hire.
So, if you hire a photographer to take pictures at your daughter’s Sweet Sixteen party, the photographer owns the copyright to the pictures unless he has signed an agreement that states the photos are works for hire. And, needless to say, a photographer who snaps your picture in a public place owns the copyright on that image.
Isn’t it an invasion of privacy?
Just because the photographer owns the copyright doesn’t negate the subject’s right to privacy. Even if he is standing on public property, a photographer cannot legally snap a picture of someone inside their home or other area where they have a reasonable expectation of privacy. Nor can photographers publish pictures that, even if taken in a public place, disclose the subject’s private life or using that subject’s likeness in a way that could be hurtful or disruptive.
There are exceptions, however, as the Digital Media Law Project explains. Say a photographer publishes a photograph of an individual being affectionate with someone other than their spouse. “The legal claim [of invasion of privacy] can only be successful if the facts in question are not legitimately newsworthy,” according to the DMLP website. So, if the subject of the photo is a public figure (someone who’s running for office, for example), a court might find that the published photo is legal. The gray area is deciding whether or not “legitimate public concern” is involved.
What about publicity rights?
Most states have laws that limit the unauthorized publication of another person’s image for exploitative purposes, such as advertising (as happened in the case of McMurtry’s photograph). The law recognizes the commercial value of a person’s identity and that we each have a “right of publicity” regarding our own likeness. The right of publicity establishes that the ability to profit, in a commercial setting, from a person’s photograph should reside first and foremost with the subject.
Once again, however, there are exceptions. For instance, different rules apply if the subject is a celebrity. Moreover, the law recognizes the difference between commercial use and editorial use. If the photograph is newsworthy, it can be published without the subject’s permission.
Can you sue?
It depends. If you were in a public place—a shopping mall, a beach, an amusement park—when you were photographed, then you are probably out of luck in terms of invasion of privacy. But if your likeness is used commercially—say in an advertisement – without your permission, you may have grounds based on your right of publicity.
Since there are a lot of variables involved, it’s advisable to seek legal advice from an intellectual property attorney if you’re considering a lawsuit. And remember, when you’re out in the great, big world—one in which nearly everyone is equipped with a photo-taking device—expect your would-be 15 minutes of fame to happen without your consent.