In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a question about best practices for using employees’ photos.
Q: Our company has just taken pictures of key employees for use on social media, brochures, and elsewhere. Are we required to get consent before we use the pictures?
A: There’s no federal law or regulation requiring you to get consent before using employee pictures in promotional materials or online. Employers in West Virginia, however, should be aware of the common law claims of right of publicity and right of privacy before deciding whether to skip the photography release form. The right of privacy serves to protect one’s “individual personality and feelings,” while the right of publicity “protects the commercial value of a name or likeness.”
Under a right of privacy claim, an employee could sue for the appropriation of their name or likeness and try to seek damages for mental distress caused by using their picture. West Virginia courts recognize the incidental use exception, however, which would likely apply to the use of employee photos. The exception allows for the use of one’s photograph as a matter of convenience or to represent the likeness of a certain type of person. So long as the picture isn’t published because of the individual’s particular likeness, it isn’t appropriation. Thus, in this instance, using an employee’s picture in a brochure to represent employees would be lawful—even without consent—because it’s the employee’s role, not the actual employee’s particular likeness.
West Virginia also recognizes the right of publicity, which focuses on the financial damage of using someone’s name or likeness without their consent. A right of publicity claim is limited to public figures, however, who develop their “name or likeness through the investment of time, money and effort.” While the definition of public figure can be interpreted more broadly, the right of publicity is generally used to protect the commercial interests of celebrities. Therefore, most employees wouldn’t be able to recover.
Still, you should keep in mind the motivation behind using your employees’ pictures online and in promotional materials. Although pictures of employees engaged in the business’s services would likely not implicate a right of privacy or publicity claim, it could be a different story, for example, if an employee was a former college athlete and you intentionally used her in promotional materials to benefit from that association—without her consent.
Ultimately, while you can use employees’ pictures without their consent, it would still be best practice to obtain a signed release before publishing such photographs. This practice helps to limit both potential legal issues and ensure employees’ comfortability.
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Ashley Faulkner is an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia. You can reach her at ashley.faulkner@steptoe-johnson.com.