Use by Employers of Employees' Photos in Ad Campaigns: Do They Have to Pay You?

People have a right to control their own images or likenesses. This comes up most often with celebrities, simply because their images and likenesses are the most valuable. However, the legal rule applies to everyone, famous or not. This means that no one may use your image or likeness without your permission, and you may withhold your permission for any reason. This rule even applies to your employer: your employer cannot use your image or likeness on their website, in commercials, on product packaging, etc. without your permission.

However, rights like this can be granted by contract. Often, this is in exchange for some consideration, or payment. Again, if you think in terms of celebrity endorsers, whether athletes or actors or other, they are almost always paid (and handsomely!) for allowing someone to use them in conjunction with a product, service, or company. Similarly, if your employer wants to use your image or likeness, they can pay you for it; and the payment doesn’t need to be cash on the barrelhead. Comp time or vacation time, for example, are perfectly good forms of payment for an employee.

Being your employer, though, your employer has considerable leverage to “make you a deal you can’t refuse.” Specifically, you could be fired for not letting your employer use your image. The employer can use your job, or your continued employment, as consideration for the agreement to let the employer use your image or likeness. This can be done “on the spot”, i.e. when they decide to use your image, or in advance. It could part of a general form or agreement that all employees sign upon hiring, agreeing that the company has the right to use their image or likeness in certain situations or contexts without additional compensation. In any event, the employer can often get employees to agree to allow it to use their images or likenesses. If it does not get written agreement at some point prior to using the image,  an employee may have a cause of action against the employer and the right to sue for damages.

Even if the employee grants his or her employer permission, there are still limitations on what can be done. First, the grant of permission is a contract, so if the employer exceeds its terms (e.g. number of uses; how used; etc.) the employer may be liable for its breach. Second, if the image is used in such a way that it damages the employee’s reputation, the employee may have a cause of action for defamation. This can be as extreme as using an employee’s likeness in a public service spot about pedophiles, implying that the employee is one. It could be something relatively subtle but yet potentially damaging, such as using the image of a devout Muslim or Orthodox Jew to advertise pork. It’s possible, of course, for the employee to agree to these uses, but the threat of a defamation action helps keep thoughtless and damaging uses of an employee’s likeness in check.