Use by Employers of Employees’ Photos in Ad Campaigns: Do They Have to Pay You?

People have a right to control their own images or likenesses. This comes up most often with celebrities, simply because their images and likenesses are the most valuable. However, the legal rule applies to everyone, famous or not. This means that no one may use your image or likeness without your permission, and you may withhold your permission for any reason. This rule even applies to your employer: your employer cannot use your image or likeness on their website, in commercials, on product packaging, etc. without your permission.

However, rights like this can be granted by contract. Often, this is in exchange for some consideration, or payment. Again, if you think in terms of celebrity endorsers, whether athletes or actors or other, they are almost always paid (and handsomely!) for allowing someone to use them in conjunction with a product, service, or company. Similarly, if your employer wants to use your image or likeness, they can pay you for it; and the payment doesn’t need to be cash on the barrelhead. Comp time or vacation time, for example, are perfectly good forms of payment for an employee.

Being your employer, though, your employer has considerable leverage to “make you a deal you can’t refuse.” Specifically, you could be fired for not letting your employer use your image. The employer can use your job, or your continued employment, as consideration for the agreement to let the employer use your image or likeness. This can be done “on the spot”, i.e. when they decide to use your image, or in advance. It could part of a general form or agreement that all employees sign upon hiring, agreeing that the company has the right to use their image or likeness in certain situations or contexts without additional compensation. In any event, the employer can often get employees to agree to allow it to use their images or likenesses. If it does not get written agreement at some point prior to using the image,  an employee may have a cause of action against the employer and the right to sue for damages.

Even if the employee grants his or her employer permission, there are still limitations on what can be done. First, the grant of permission is a contract, so if the employer exceeds its terms (e.g. number of uses; how used; etc.) the employer may be liable for its breach. Second, if the image is used in such a way that it damages the employee’s reputation, the employee may have a cause of action for defamation. This can be as extreme as using an employee’s likeness in a public service spot about pedophiles, implying that the employee is one. It could be something relatively subtle but yet potentially damaging, such as using the image of a devout Muslim or Orthodox Jew to advertise pork. It’s possible, of course, for the employee to agree to these uses, but the threat of a defamation action helps keep thoughtless and damaging uses of an employee’s likeness in check.

Case Studies: Employer Use of Employees’ Photos in Ad Campaigns and Insurance Implications

Case Study 1: Unauthorized Use and Breach of Contract

In this case, a large retail company used the photos of its employees in an advertising campaign without obtaining their permission or compensating them. The employees had not signed any agreement granting the company the right to use their images. As a result, the employees filed a lawsuit against the company for unauthorized use and breach of contract.

In this scenario, the company could have mitigated the risk by obtaining appropriate insurance coverage. A comprehensive general liability (CGL) insurance policy could have protected the company against claims arising from unauthorized use of images, including defense costs and potential damages. However, since the company did not have the necessary insurance coverage, it had to bear the legal expenses and potential settlement costs out of pocket.

Case Study 2: Defamation and Reputational Damage

A small advertising agency used an employee’s photo in an ad campaign that implied the employee had a criminal record. The employee, who had a clean record, suffered significant reputational damage as a result. The employee filed a defamation lawsuit against the agency, seeking compensation for the harm caused.

In this case, the agency could have benefited from having professional liability insurance, also known as errors and omissions (E&O) insurance. This type of insurance helps cover the costs of legal defense and potential damages resulting from claims of professional negligence or defamation. If the agency had E&O insurance, it could have relied on the coverage to handle the legal expenses and potential settlement or judgment.

Case Study 3: Violation of Privacy Rights

A tech startup used employees’ photos in its promotional materials and social media campaigns without their consent. Some employees felt their privacy rights had been violated and decided to take legal action against the company. They sought damages for invasion of privacy and emotional distress.

In this case, the startup could have protected itself with employment practices liability insurance (EPLI). EPLI coverage helps safeguard businesses against claims related to employment practices, including invasion of privacy. If the startup had EPLI coverage, it could have relied on the insurance to cover legal costs, settlements, or judgments resulting from the employees’ claims.