Can you Use an Image without Consent?
Can you use the image of a person in a photo to promote your business? Interesting. You might be surprised to hear the answer to this one.
Hi everyone, Simon here from The Contract Company. Contracts, that’s what we do all day, every day and sometimes overnight.
So we’ve started a new website called askacontractlawyer.com.au where you can ask your free contract law question. If your answer qualifies, we’ll provide an answer by way of video and this is one of those answers.
Can you use an image without consent?
So, can you use the image of a person to promote your business? Well, the answer is yes. Should you? Probably not.
Let me explain that. In Australia, there’s no common law right to privacy. Meaning you can’t stop using, so you can’t stop someone using a photo of you to promote their business.
There are some caveats though. If you have a very well-known personality, so you’re a famous person or a celebrity, then you could bring an action for defamation or misleading and deceptive conduct under the Australian Consumer Law. Or even potentially under the Laws of Passing Off, to basically say that you didn’t authorize the business to use your image in the photo.
Now if you have a well-known personality like Kieren Perkins does, or did, or does. He was able to successfully take on Telstra, who used a photo of him with a swim cap on and the swim cap had the Telstra logo on it.
So he was able to successfully show that, Telstra was trying to say that he personally was promoting the Telstra brand when in this case, he wasn’t.
But unless you’ve got a Kieren Perkins profile, it’s unlikely that you’ll be able to bring a successful action to stop a business using your image.
But for the business who wants to use the image and I assume that the business has the right to use the image. This is because they have a license from the photographer, so it’s the photographer who actually owns the copyright in the image.
As long as the business has the copyright owner’s consent to use the image, then they can use it but to avoid all caution really.
Getting the Disclosure
It’s just a simple case of getting a model disclosure or something like that. This is signed by the person who’s in the photo or the subject of the photo. The disclosure says that they can or that they consent to you using their image to promote your business and they can’t sue you.
It’s a simple, one-pager that can protect you and save a lot of heartaches but can you use the image without consent?
Potentially you can. Would you want to? Well, I would say no just because the effort to reduce all risk is just a simple document with a couple of paragraphs, why would you take that risk?
Anyway, I hope that answers your question, Darren and if anyone else has a question, you can go to askacontractlawyer.com. Ask your question and if it qualifies, we’ll provide you a free video answer.
(See related post on Data Privacy.)