There have been cases when the picture of a non-profit volunteer was used by the organization without the volunteer’s knowledge. There are various legal theories that may apply in this situation. It must be established, the volunteer’s likeness was used without their permission. Depending on the facts of a case, the volunteer may have legal recourse for their likeness being used without their consent.
When a business or organization obtains the likeness or image of a person and does not have the person’s permission or consent, this individual may be able to file a lawsuit if the image or likeness is used by the business or organization in specific ways. When the image or likeness is utilized to publicize or promote the services or products of a company or organization, and there is no attempt to obtain consent, it could be grounds for a legal action by the individual whose likeness or image was utilized. This is also the case if consent has been requested but denied by the individual. The reason is, an individual has a legal right to not be exploited is this way and unknowingly promote certain goods and services. There are local and state laws that forbid using an individual’s likeness for exploitative reasons or personal benefit. This can be the case if an individual’s image or likeness is utilized for monetary benefit, fame, attention, publicity, and more.
Most places recognize a right to publicity. When an individual claims another party infringed on their right to publicity, it is a stronger case if this person has a certain level of fame or celebrity status. In this situation, their image has more significant commercial value and a likelihood of being exploited for gain. This right makes it against the law for others to have commercial benefits from using a person’s image or likeness for financial benefit without their permission.
It is possible for the image or likeness of a person to be used and associated with promoting a company or organization with views the person doesn’t want to be considered to represent. It is possible for an image or likeness to be used without permission or with permission but not in the way a person agreed for them to be utilized. Should an image be publicized in a way a person feels embarrassed or could have offended other people, they may have good cause to pursue a civil case against those who wrongly used their image or likeness.
There have been situations where a person’s image or likeness could be taken as an individual or as part of a group in an open or closed event. These images have often been used without permission. Some of the places where these images have been taken are in a person’s home, hotel room, apartment, in their office, at their work, and more. A person has a right to control images of themselves in their private life and not in a public environment.
Should a person have their image publicized and used in a way that they do not want, their first step should be to contact the offending parting and request the image be removed. Should the image be on a website, it can be removed by a hosting account as it updates. If the offending image or likeness is used in a print publication, an individual can contact them directly and request the unauthorized image be removed. Should the offending party refuse to remove it, an individual may have sufficient grounds to take legal action.
Should someone find their image being used against their wishes, they can send the offending party a takedown notice. Prior to sending a notice, they need to determine if using their image or likeness could be permitted because of fair use laws. There are certain things a court will look at to determine if using an image is part of fair use:
*Character and Purpose Image Use. If the image is used for educational or transformative purposes, it could fall under the category of fair use. This could be a situation when a student uses an image for a school project or an article is written about photography but not the person in the photograph.
*Effect of Using an Image. Should use of a person’s image have a negative impact on their ability to earn money, its use may not fall under fair use. This often happens if someone’s image is used to sell a product they do not support.
*Published or Unpublished. Should the images of a person already be published or used in any other way prior to them knowing about it, they may have a good case for a fair use claim. Their case will be much weaker if the claim is unpublished or has yet to be used.
*Amount of Image Utilized. One of the general rules, when it comes to determining if utilizing an image falls under the doctrine of fair use, is if only a portion of the image is used. Should only a portion of the image be used and not the entire image, it may fall under the protection of fair use.
There are at least three different elements that must be established in a court case for a company or organization to be held liable for unlawful use of a person’s image or likeness.
*Protected Attribute. The person who brings the lawsuit must demonstrate how the defendant used some part of their identity that has legal protections. The law protects certain aspects of personal attributes.
*Lack Of Consent. It is important a person bringing a lawsuit be able to show they did not give permission to the defendant for use of their image or likeness.
*Exploitative Purpose. It must be established the defendant intentionally used a plaintiff’s image or likeness for exploitative, commercial purposes or in some way benefited from using it.
A person who files a lawsuit for unauthorized use of an image or likeness should know the legal defenses that may be used by a defendant. There is an exception when it comes to using it for the purpose of news reporting. In order for this to be used, a reasonable relationship must exist between the defendant and the plaintiff. It must also have been done as a matter of public interest. It’s also possible for a defendant to claim their use of an image was part of a creative work. This defense will be based on state laws.
The unlawful use of someone’s image or likeness is something that is quite common. There is a problem when an organization, such as a non-profit and others, use these images without permission for advertising, promotional activities, and more. When a person believes they are the victim of having their image or likeness unlawfully used, they should speak with an attorney. They will know how to analyze the facts and determine if someone has a case. An attorney will also know how to protect a person’s rights and get them any compensation they may deserve.