The internet, with its “remix culture” often appropriates images and videos to create new things. Yet, this also includes personal images. Be it “Bad Luck Brian,” “Overly Attached Girlfriend,” or some exploitable image, how could one protect his or her personal image from being remixed and exploited for a financial incentive? This is also a question appearing outside of the internet in particular with book covers and music videos. How might one protect his or her own face and body? What is the best method of protecting one’s image? Is this related to the right of privacy or right of publicity?
How could a person protect his/her own face and image?
Outside of simply preventing your image to be published online by avoiding social media, preventing photos to be taken, or spending your days behind a mask, the only way to protect your image comes up after an incident has occurred online. The right over one’s own image can be boiled down to privacy claims, with three main types of laws protecting it. First, the right to privacy. Second, is biometric privacy law. Third, is the right of publicity. Of the three, biometric data is the newest, with statutes in Illinois and Texas, with minor provisions drafted in Iowa, Nebraska, North Carolina, Oregon, Wisconsin, Wyoming, and New York. The idea of a biometric privacy law is that it creates a privacy “right” over an individual’s biometric features (e.g., fingerprint, retina, iris scans). Yet, ultimately this would only serve to protect one from larger entities. To that point, the law in Texas lacks a private right of action, but permits the State Attorney General to instigate legal action.
Might this relate to a right of privacy or publicity?
Comparing this to the idea of right of publicity and right of privacy, it has some basis for protection. It is generally hard to differentiate the two, as the right of publicity may fall under either unfair competition, trademark, or right to privacy. However, in California, the protection takes the form of Civil Code § 3344. This statute prevents someone to knowingly use another person’s name, voice, signature, photograph, or likeness on merchandise or in an effort to advertise, without consent, for commercial purpose, causing harm to the victim. The use would not be protected if it was not part of news, public affairs, sports broadcasts, or political campaigns.
Looking at examples of this type of tort, we can look to Ohio’s “Gronking to Remember” case, wherein a couple sued for the use of a wedding photo on an erotic novel. While Amazon was not found liable (as it was not the entity that chose the image for the novel), such actions against someone with more connection to the editing decision may have succeeded.
At our law firm, we assist clients with legal issues related to internet privacy and e-commerce transactions. You may contact us to set up an initial consultation.