Using a photo or video taken from your recent event —in everything from social media posts, annual reports to product demonstration videos—is a great way to show your company’s personality. But using photos commercially might land you in some hot water if you don’t understand the risks and take steps to protect yourself.
What is Commercial Use:
I have noticed the majority of people do not understand what it means to use a photo commercially. A commercial use means that the image is used directly in the marketing and promotion of a product that results in monetary gain. Basically, if you’re using a photo to get people to buy something, or to visit your website that ends up in a sale of some sort, that is a commercial use. (Law & Legal Definition)
Now that we know what a commercial use is; Should you use images from your event of recognizable people for commercial uses? Let’s look at an example of what could happen to your business if you did.
California woman sued Chipotle for $2.2 billion based on the burrito chain's unauthorized use of her photograph in its promotional materials. The $2.2 billion demand represents Chipotle's profits from 2006, when the photograph was taken, through 2015. While the plaintiff's claim for damages is wildly unrealistic, this case serves as a useful reminder that any business which uses a person's image for commercial purposes must first obtain that person's consent. (read full article here)
That Wouldn’t Happen to Me Though
If a business is going to use a photograph of a recognizable person for commercial purposes, the business must obtain that person's consent and, in the case of a minor, the consent of the minor's parent or guardian. (Best practice is to obtain a signed model release.)
What kind of consent would hold up in court? Proving that you had prominent signage posted everywhere in the event space(s) stating that “by attending the event - the attendees consent to the commercial use of their photographs taken at the event” is a good start. The downside of this method is the person suing could say that they did not see a sign or they weren’t “informed” or “understood” what it really meant. By Texas law, consent is only valid when a person is fully informed and truly understands what they are consenting to.
“But I Really Love this Photo and I Think it would be Great for Promoting Our Business!”
If this is the case, and you don’t have a signed model release, you have 2 options to consider:
Use the photo anyway without permission (HIGH RISK)
Possible future lawsuit that could cost your business thousands, if not millions of dollars in legal fees and fines. Also, would create terrible PR for your business!
Hire a photographer to recreate the image(s) with a signed model release (Low Risk)
Investment could range from a few hundred to a few thousand dollars with a ROI during commercial use. And, peace of mind knowing you did things the lawful way.
What do you think is the smart choice? Hiring a photographer might seem expensive at first, but when you see the bigger picture, they are actually saving you money in the long run from penalties and lawsuits, in return helping your business make more money, and grow with the images they created for you.
Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.
If you have time to spare and would like to dive deeper into this rabbit hole, check out Digital Media Law or read Helen Sedwick’s “How to Use Images of Real People Without Violating Privacy and Publicity Rights“ regarding this topic.