Using Employees Photos (USA)

Response #1: One thing to check is state law, and an important factor is how you intend to use the photo. Ohio, for example, has a statute that provides fines for using a person's likeness for commercial use without their permission. I'm aware of employers having to toss stacks of brand new brochures, for example, because they contain a photo of a happy employee turned disgruntled former employee. At the same time, not all use of photographs will qualify as commercial use. For example, taking pictures of employees at a company event and circulating those pictures in an internal monthly company newsletter. Finally, I believe we include in our new hire documents a statement authorizing the use of photos for any lawful purpose but it's also my understanding this is a "fallback" and that if we know we intend to use a photo for commercial use we obtain a more detailed and specific individual authorization.¹

 

Response #2: It is a best practice to get written consent if you are taking photos at company events (especially those on company property), so you are covered if you want to post the photos on your company website, social media accounts, etc. Some state laws require written consent depending on the intended use of the employee's photo (California is one). An internal newsletter might not be considered "commercial" use, but I think posting event photos on a publicly available platform such as a Facebook page or website arguably could be considered commercial use (it could go toward brand building and brand promotion, depending on the nature of the event).²

 

Response #3: The exact answer will depend on state law, but since most states now have some form of right of publicity and/or right of privacy codified or in common law the answer is probably yes. This website might be a good starting point in your research: http://rightofpublicity.com/statutes.

 

As to whether it is sufficient to include a general statement in your employee handbook, that's hard to say. In addition to depending on the relevant state law, how you handle your handbook (does every employee sign it upon receipt? how about when the book is changed? is the release statement buried and not very prominent? is it actually read?) and the type/scope of the use also matter. In my opinion it is a best practice to get a written release specific to each intended use. Society for Human Resources Management discusses this topic here: https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cananemployeruseeesphotosformarketingcompanywebsiteorpromos.aspx.

 

Every situation is different. A group picture in an internal paper newsletter celebrating someone's birthday that goes out to 10 people is very different from trying to use someone in a commercial. And while we would all love to have the problem of our social media posts going viral, keep in mind that you can't always predict the final scope of something placed online and without an agreement an employee might expect compensation for something that is widely distributed. A written release also helps with the age-old problem of clarifying exactly what was agreed to, especially if the employee chats with the photographer or a manager and gets casual or uninformed responses.³

 

Follow up Question by Poster

Do you think that one general release that covers employee events, company educational functions, etc. is sufficient? Or would you do a new release for each event?

 

Response #4: Just speaking from my own perspective, it would depend on the applicable law(s) for the jurisdiction, how the release was drafted, and the scope and nature of my intended use. If the plan was to use the pictures in a dedicated marketing campaign or if honoring a remove/take down request would be expensive I would get a release specific to that use. For general purposes, such as taking pictures at multiple different employee events and casually using them on a modest social media page, I think a properly worded general release is the most practical and balances business and legal considerations. You really don't want to be drafting a specific release before every company bowling night. Of course for some companies social media use can reach thousands to millions of people, so it is truly fact-specific. Lastly, it is not inconceivable that testimonial/endorsement rules could find a way to be implicated so it is always good to view use through that lens as well.⁴