Unauthorized Commercial Use of Photos and Facebook: An Overview of California Law

Posted about 2 years ago. Applies to California, 1 helpful vote

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Let me preface this by saying: 1) I am a lawyer; 2) This is not legal advice; and 3) I do not specialize in copyright law. This post is just for educational and discussion purposes and does not constitute legal advice nor does it create an attorney client relationship. You should consult a lawyer regarding the specific facts of your situation.

A wedding photographer wanted to know whether he or she could use the photograph of the Bride and Groom's family member on the Company's Facebook page to advertise its services or whether the Company had to take down the photo at the family member's request. Let's call the family member Grandma.

Curious, I decided to look up the California Statute that generally governs this situation. It is California Civil Code section 3344 (and its subparts). While my analysis is in the context of wedding photography, this doesn't just apply to wedding photographers, but to anyone using someone's photo without permission for commercial purposes.

In general section 3344 provides that you need a model release for any individual who can be readily identifiable from a photograph that is used for any commercial purpose, including "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". While I haven't reviewed case law on the subject, the plain language of the statute seems to sweep the display of a photograph used for commercial purposes on facebook under its umbrella.

So, for example, you have a model release (contract) with the Bride and Groom indicating that their photos maybe used for commercial purposes, such as display on facebook and other mediums to solicit business for your company. That covers them and avoids any problems. If you do not have such language then you probably should be adding it right about now.

Now what about their Grandma. She hasn't signed a release and neither have any other guests. So when you post the photo on facebook for the commercial purpose of advertising your business, you likely fall under CC section 3344.

The downside: Section 3344 provides for a minimum penalty of $750.00. That may be more than what you were paid to shoot the wedding. It get's worse. That penalty is per person identifiable in the photograph should they claim unauthorized use. Grandma and Grandpa could set you back $1,500.00. That is not all. There is still more bad news.

Under Section 3344 you could also be required to pay Grandma what you would have paid for a model to be used in that advertising. Worse still, you could be required to disgorge all profits that can be traced back to that commercial usage. So you could be forced to payout thousands if not hundreds of thousands of dollars in profit for each year that you got business because of the unauthorized photos usage. Don't believe me? Check out this article on the subject and skip down to read about what happened to Taster's Choice. http://adultbizlaw.com/model-releases/

It gets even more complicated if Grandma dies and you continue to use the photograph. That's covered by section 3344.

Moreover, you could be liable under other California statutes as well. Last, but certainly not least, you may also find yourself liable for Grandma's attorney's fees should she sue you and prevail. So not only will you have to pay her for the photo, disgorge your profits, but you will have to pay for the privilege of being sued as well.

Did I mention that other states may have their own laws on the issue. California's law is super strict because of the celebraties. But who wants to be sued by Grandma in California, the cousin in Nevada, and the Uncle in New York all because they were in one photograph with the Bride and Groom?

My advice: Take the photo down or get a signed model release.

Additional Resources

http://adultbizlaw.com/model-releases/

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