Published on:

Can Someone Use My Picture Without My Permission?

By

Can Someone Use My Picture Without My Permission?

Public law librarians hear this question quite frequently and while we don’t really want to make our responses more complicated than is necessary, sometimes questions like these can be about as difficult to answer as you can imagine, especially in the abstract (such as on a blog rather than with a live person in the law library or on the telephone).

In part this is because, as with most questions in life and law, answers depend on context and specific facts unique to the person asking the question.

Also, while this question may be one of law, it may also not be; instead, it may originate in a family dispute, as in:

a) “she” posted my photo to “her” webpage and I want “her” to take it down or
b) my “cousin” posted my child’s picture to a family webpage and never asked my permission

In these instances, rules of etiquette and mutual respect may be more applicable than “the Law” or at least more to the point.

But for now, let’s assume the question is one of “law.”

The simple answer is that, depending on the factors listed below, you may have no rights, you may have a certain bundle of rights, or the problem may be beyond the scope of the law. (The following is not a complete list of “factors,” but it is representative of the facts that must be determined when you search for an answer to a specific question.)

1) Legal status of person photographed, e.g. minor, public official, family member, etc.

2) Where picture was taken: workplace, family gathering, public space, private space, etc.

3)What does “use” mean (and for that matter, what does “picture” mean?): Posted online to a Facebook page? Published in a newspaper or a workplace newsletter? Printed in a book, or online, for a unincorporated non-profit organization? Other?

4) Who took the picture and why? Relative at a family gathering? Professional photographer? Group photo of a neighborhood association board of directors? Other?

You might want to read some or all of the following resources to see if any give you the answer to your question:

1) Online: “PhotoSecrets: The Law for Photographers: The Legal Aspects of Photography: A free, online guide to the rules of taking and selling photos: The law is blind; photographers aren’t,” by Andrew Hudson.

2) Book: “Legal Handbook for Photographers: The Rights and Liabilities of Making Images,” by Bert Krages, Amherst Media, Incorporated, 2006

3) Blog post: This person is not an attorney, and he states that very clearly, but he does a good job at laying out in plain language how many factors and legal issues may need to be considered when taking, and publishing, photographs: “Photography, the Law and Photographers Rights

4) From the U.S. Copyright Office, Fair Use FAQ: “…In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

There may be situations in which the reproduction of a photograph may be a “fair use” under the copyright law. Information about fair use may be found at: www.copyright.gov/fls/fl102.html. However, even if a person determines a use to be a “fair use” under the factors of section 107 of the Copyright Act, a copy shop or other third party need not accept the person’s assertion that the use is noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law….” (Link to full URL.)

5) The Stanford Fair Use website.

6) The Society of Professional Journalists has a Code of Ethics, that may be interesting and useful.

7) If someone has published a photo online, you will need to read the policy of the online publication and also perhaps the internet host or the ISP (Internet Service Provider), if the publication is hosted on another company’s servers. For example, Facebook has its own policies and discussion lists and you can read about them in their FAQ.

8) This Urban Copyright Legends article might be useful, too, or at least interesting.

Enjoy your legal research adventure!

DISCLAIMER

1) The information provided on this blog is for research purposes only. We do not provide legal advice, nor do we endorse any person, product, or company.

2) It is against state law for library staff members to engage in any conduct that might constitute the unauthorized practice of law (ORS 9.160, 9.166 and 9.21). They may not interpret statutes, cases or regulations, perform legal research, recommend or assist in the preparation of forms, or advise patrons regarding their legal rights. They may, however, assist patrons in locating materials or links that would aid in individual research.