Submission Date:
Question:
This is an issue that's come up in recent conversation. If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse? It seems wrong for an institution to continue to use photos of faculty, staff, or even students who are no longer affiliated with the institution but it seems to promote the idea that they are. Sometimes it could be carelessness, other times it seems like there is an illusion of diversity being promoted. What could someone do if they find that their image/likeness is still being used by their former employer, for whatever reason?
Answer:
This question needs to be answered on a sliding scale.
Here are three scenarios to show how the scale can slide:
Scenario 1: "Scrapbooking"
A museum makes robust use of social media to connect with its community. At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community. Members often comment how much they enjoy the images and connectivity.
Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.
No written, signed permission to use the employees' images is obtained.
Scenario 2: "Image Crafting"
A library is working to show its commitment to diversity, equity, and inclusion. The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.
No written, signed permission to use the employees' images is obtained.
Scenario 3: "Stone Cold Marketing"
An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property. The donated land is more centrally located in the library's area of service. To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land. The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.
No written, signed permission to use the employees' images (or their kids' images) is obtained.
In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."
Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, 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, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."[1]
"Ask the Lawyer" has addressed this issue a bit before: see https://wnylrc.org/raq/employee-privacy-and-image-use and https://wnylrc.org/raq/posting-patron-images-facebook-when-image-release-required, but we haven't focused on solutions to the question posed by the member: If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?
This is where our scenarios come in.
If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse. That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.
As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law. A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.
On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.
What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image? A few things:
First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media. If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.[2]
Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.
Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications. Then ask who would want to be featured. For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials. If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release. This is not a requirement!"
Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description. For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."
And fifth, when in doubt, get an image release.
An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.
That said, here is a sample:
Image Release
NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives. As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.
DATE:______________
SIGNATURE:______________________
WITNESS:____________________________
Records retention period of this release: PERMANENT.
A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."
Thank you for a thoughtful question!
[1] I won't list them all here, but there are many exceptions to this law for use by artists, journalists, etc. If you are just learning about Civil Rights Law 50-F in this RAQ, please don't let it stifle your archive, art, or journalism! You can find the list of exceptions here: https://www.nysenate.gov/legislation/laws/CVR/50-F.
[2] I could write a whole chapter on this consideration, but we'll leave it there for now.
Tag:
Employee Rights, Ethics, Image Rights, Templates, New York Civil Rights Law
