Consumers Like You – Can you Like Them Back? Right of Publicity Issues on Social Media
Shereen Way and her daughter Gloria, 4 Credit Andrew Renneisen for The New York Times
A recent New York Times article serves as a helpful reminder that the use of a person’s name or photograph for commercial advertising and promotional purposes, without the person’s consent, would likely violate state right of publicity laws and potentially contravene a company’s privacy policy or website terms of service. http://www.nytimes.com/2015/09/21/business/media/retailers-use-of-their-fans-photos-draws-scrutiny.html?_r=0.
Even if a consumer happily posts a picture on Instagram or Facebook wearing or eating a company’s product, visiting a restaurant or attending a branded event, a company should not post that picture on the company’s own website or social media channels without the consumer’s consent, because that would constitute commercial advertising. As detailed in the article, a mother posted a picture of her four year old daughter wearing pink Crocs sandals, using a Crocs hashtag. Crocs then featured the picture in a gallery of photos on Crocs’ own website. Crocs apparently does have a practice of posting comments underneath consumer-generated pictures, followed by a request for permission to use the photos elsewhere, but in this instance the policy had not been followed.
To avoid potential liability, as well as harm to reputation and good will, it is advisable to get written consent (which can be in digital form) to the use of a consumer’s name or photo for any advertising or promotional purpose. And if a child or teenager is involved, the consent form must also be signed by the parent or guardian.
