In the age of social media, brand management, and on-line advertising, it is important to protect an employer’s ability to use content, photographs, videos and images created, captured and displayed on any medium or platform and internally. Do employers have the right to display images of employees? Do employers have to scrub all images of ex-employees from a group photo taken at a holiday party posted on the company’s Instagram page? Obtaining written consent from employees to use their “likeness” addresses many of these concerns.
The idea of using someone’s “likeness” for commercial purposes may seem abstract or trivial. However, it has become a mainstream topic no longer restricted to celebrities or models. Social media influencers and recent changes to NCAA policy allowing college athletes to profit off the use of their name, image, and likeness illustrate the changing landscape.
The truth is employers use their employees’ likeness internally and externally for commercial purposes. Employers use these images on their websites, in promotions, social media posts, training videos, and recorded presentations, seminars, and webinars.
The right to control the use of someone’s likeness is not novel or new. In 1977, the Supreme Court recognized that states have the ability to designate a “right of publicity.” The right of publicity protects an individual’s economic interests to control the commercial value of their name and likeness and prevent unauthorized exploitation by others. Since 1977, twenty-five states have enacted statutes addressing an individual’s right to publicity with even more upholding the right through common law. Ohio is one of the twenty-five states with a specific statute protecting the use of an individual’s persona for commercial purposes. Ohio’s statute protects an individual’s name, photograph, image, or likeness from being used for a commercial purpose, such as advertising or in connection with goods and service, without approval or consideration.
In addition to any traditional advertising or marketing, employers need to consider how they use their employees’ likeness and whether they need to update their policies to ensure this content can be used whether it features employees or ex-employees.
It is good practice to obtain authorization to freely use an employee’s likeness any time during or after employment, as long as it is for a legitimate business purpose. Failure to obtain consent is risky. An authorization addresses potential liability and prevents having to scrub content for any trace of a former employee.
Locking down an authorization can eliminate future headaches and bare social media accounts. Graydon’s Labor & Employment attorneys are here to assist you with any questions or to draft appropriate authorizations.
