BE CAREFUL PUTTING PHOTOS IN YOUR BLOGS OR ADVERTISING.

BE CAREFUL PUTTING PHOTOS IN YOUR BLOGS OR ADVERTISING

Many of us have done it. We write a blog, or make an entry on Facebook, or put together a marketing brochure or email. Just words on the page gets hard to read. So we spice up the message with photos we pull off the internet or from our cellphone camera. But even though this is done frequently, there can be consequences. Not only are some of those photos copyrighted (the subject of another blog), but in Arizona, the use of those photos may subject you to a cause of action called Appropriation.
The tort of Appropriation (also known as the Right of Publicity) can arise when you:

  • Use another person’s name or likeness,
  • For your own advantage,
  • Without that person’s consent, and
  • Injury to the other person results.

The tort can arise even when the only damage is hurt feelings. So if you use a photo that embarrasses someone, you may be looking at a lawsuit. Specifically, you may be looking at damages for mental anguish.
And if you are using the photo for commercial purposes, you may end up paying that person for a proportion of the profits attributable to the unauthorized use. The burden will be on you, not the other person, to show that the profits were the result of other factors besides the photo.
If, however, the purpose of the photo was “communicative”, rather than “commercial”, you are protected by the First Amendment. That is the defense that would save many of us. But the difference between the two is often a thin line, and hard to prove. The court will look at factors like whether the use of the photo has unique value to the person photographed, the relationship between the photo and the purpose of the work you insert it in, and how frequently the photo or photos are used in the work.
Also, once the subject of the photo is dead, there is no claim.

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