Permissible Use of Photographs & Videos

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Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

With the pervasiveness of digital photography and the sheer simplicity of posting a photograph or video online, it is more important than ever that credit unions are mindful of the legal rights associated with a photograph/video before posting it to a website or social media platform. Two key considerations are the federal copyright law and the California right of publicity law.

Copyright Law
Copyright is a protection created by law in “original works of authorship fixed in any tangible medium of expression.”[1]  In general, it grants the owner the exclusive right to do (and authorize others to do) the following:

  • Reproduce the work
  • Prepare derivative works
  • Distribute copies to the public by sale, transfer, rental, lease, etc.
  • Perform or display the work publicly

It also includes the rights of attribution and integrity.

A photograph is subject to a copyright from the moment of its creation. Subject to certain exceptions and limitations, the legal protections exist regardless of whether the owner identifies it with a ©.

Licensing
Before posting a photograph, a credit union should always take steps to verify whether the photograph is subject to a copyright, the owner of the copyright, and ensure that it has the necessary permission to use it without infringing. This can typically be accomplished through a licensing agreement.  A license, however, may have a limited scope and should be reviewed carefully. For example, a license to use a photo in a specific print advertisement does not necessarily permit the posting of that same photograph to a social media page. Exceeding the scope of a license, either as to the nature of the use or the length of time such use is permitted, can result in infringement.

Social Media Terms of Use
Unlike a website, social media is a platform owned by a third party and the use of that platform is subject to the terms of use established by the platform owner.  For example, the Facebook terms of use presently state:

[W]hen you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings) . . . .  

Facebook then goes on to explain that despite your termination of your account or deletion of a particular picture, your prior posting of, for example, a picture may continue on their system for a number of reasons and pursuant to their prior agreement with you.

Credit unions would need to ensure that they have the legal authority to grant these additional licensing rights before posting a copyrighted photograph.

Right of Publicity Law
California’s right of publicity law prohibits the knowing use of a person's “name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services...” without that person’s prior consent.[2]  For a minor, consent would need to be obtained from the parent or legal guardian.

When posting a photograph of an individual or identifying them in connection with an event, it is essential to ask whether or not it could be construed as an advertisement. Per the statute, courts will consider as a question of fact whether or not the use was so directly connected with the commercial sponsorship or the paid advertising as to constitute a use for which consent is required.  Failure to obtain prior consent, if required, could result in damages of $750 or the actual damages suffered due to the unauthorized use, whichever is greater, any profits attributable to the use, plus possible punitive damages and attorney fees and costs.

Release
As with a copyright license, a best practice is to obtain a carefully drafted and signed release from the individual authorizing any and all anticipated uses of their name, likeness, etc., including for advertising purposes, and specifically releasing the credit union from any liability or damages associated with such uses.

Employees
Employers utilizing a photo or likeness of an employee have somewhat greater flexibility, but not much.  Where the use of a photo or likeness of an employee is only incidental, and not essential, to the purpose of the advertisement or publication in which it appears, the courts will recognize a rebuttable presumption that failure to obtain consent was not a knowing use.  However, the use of a signed release can help to eliminate any uncertainty.

 Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

[1] 17 U.S.C. §101, et seq.

[2] Cal. Civ. Code §3344.

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