According to the complaint in the Chipotle case, in 2006, a photographer approached the plaintiff outside of a Chipotle restaurant and asked her to sign a consent form about some photographs taken inside the restaurant. The woman refused, but in 2014 and 2015, she found a photograph of herself edited into promotional materials placed on the walls of several Chipotle restaurants in California and Florida. This case serves as a reminder that any business that uses a person’s image for commercial purposes must first obtain that person’s consent.
Mark Rosenberg’s statement
“This is a reminder to all businesses whose advertising or marketing materials contain photographs, videos or images people to ensure that the persons responsible for creating the material have obtained the written consent of every single person who appears in the photographs or videos,” he said. “This rule applies to every business regardless of whether the business is a national burrito chain promoting its products, a local Y distributing a brochure promoting its swimming programs, a synagogue promoting its nursery school through a web video or a youth baseball league posting player photographs on its website.”
“Ensuring that consents are obtained is a relatively simple task when an employee of the business using the image or a photographer retained by that business is the one taking the photographs. The issue becomes more complicated when the images are obtained by an advertising agency or other consultant retained by the business,” he explained.
According to Rosenberg, today, consents can be obtained in many ways including consents signed by the specific individuals whose images are being used; releases signed at the time photographs are taken and; consents obtained when a person enrolls in a program or prominent signage posted in event spaces stating that by attending the event, the attendees consent to the commercial use of their photographs taken at the event.
Two key laws
When it comes to the laws relating to businesses who want to use a photograph or image of a person for commercial purposes, two key laws come into play, per Rosenberg. First, is the right of publicity which protects a person from having his or her name, image or likeness used for commercial purposes without consent. But, the right of publicity is a creature of state law which varies from state to state – the main difference is that in some states like California, the right of publicity survives a person’s death, while in states like New York, the right of publicity ends upon the person’s death. So, how can companies better protect their reputations from defamation and violations of their publicity rights? If someone is intent on defaming another person or does not care whether a not an advertisement they place violates another’s right of publicity, there is not much which can be done to prevent that from happening in the first instance, according to Rosenberg.