When Can You Use Photos of Customers or Employees for Business Purposes?

October 8, 2019

Advertising and other commercial activities happen in an instant on social media. Are you covering your bases legally when posting photos of individuals or groups on your company social media accounts?

State law governs when you can use a person’s name or likeness for commercial or advertising purposes – this is commonly referred to right of publicity or right of privacy depending on the context and legal status in the jurisdiction.

In Pennsylvania, there is a somewhat complicated legal framework comprised of both statutes and case law that governs right of privacy and right of publicity.

Pennsylvania Statutory Right of Publicity

The statutory right of publicity protects the unauthorized use of a person’s name or likeness, but only when the person’s name or likeness has commercial value. Commercial value is shown by the investment of time, effort, and money in that person’s name or likeness. The most common example of when a person’s name or likeness has commercial value would be a celebrity or other public figure.

Pennsylvania Common Law Rights of Publicity and Privacy

The common law right of publicity, as developed by Pennsylvania case law, is broader than the statutory right because it applies to any individual or group, not just individuals whose names or likenesses have commercial value. There is also an alternative claim available to individuals by common law, which is under an invasion of privacy basis for misappropriation of an individual’s name or likeness.

Best Practices to Avoid Right of Publicity and Privacy Claims

Despite the legal framework and the distinction between the statutory and common law rights of publicity and privacy, my advice for how to avoid the issue altogether is simple: get written permission before using anyone’s photo for commercial or advertising purposes. A relatively simple written waiver is typically all that is required, but check with your counsel to make sure it accomplishes your intent.

It’s also just a good practice to make sure that you have someone’s permission before posting a photo. For example, some individuals just prefer not to have photos of themselves or their families on social media.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University Commonwealth School of Law and works regularly with business owners and entrepreneurs. Matt is one of the founding members of the RKG Tech Law Group.