Security Experts:

Get My Face Out of Your Camera

Would you mind a stranger taking your picture as you eat ice cream on a bench outside? What if your spouse and kids were also in the shot? Kind of creepy. Lots of folks have a negative reaction to stranger taking their pictures. They feel their rights have been impinged. But the rights you feel you deserve and the rights you have under the law can be very different. Let’s see what rights you really have with your image.

Several folks in the office told me of times they felt their image was taken inappropriately. “Jennifer” told me about a time when she was dancing at a bar in college and a photographer took several unflattering shots saying they were for the bar’s website. Jennifer demanded their deletion. The photographer refused saying he could publish the photos because they didn’t include the college logo on her t-shirt in any of the shots.

Was the bar photographer on firm ground? No. If your image is being used for a commercial purpose, they need your permission to use it. But if the photo had been for a personal blog, that wouldn’t have been a commercial purpose. And did Jennifer have a reasonable expectation of privacy in a bar? Doubtful, unless the bar owner posted “no photos” sign, but I have seen many of those.

“Felice” told me how she was walking down Newberry St. in Boston when a photographer with a press badge snapped a less than ideal shot of her for a magazine. She asked the photographer to bin the pic. He declined. So what’s the verdict? Did Felice have a reasonable expectation of privacy on a public sidewalk? No way. Was the photo for a commercial purpose? You may think of a newspaper or magazine as a commercial purpose, but the commercial purpose there would be the ads. Use of the photo for editorial purposes is fair game. Felice felt her privacy rights were being trodden on, but under the law she was out of luck.

So we know that folks can’t use your image for a commercial purpose without your consent. How about your employer? Do they need to get your consent to shoot a picture of you for the company website? If you signed an employment agreement granting the employer rights in your work product, the answer would be “no.” Even if you didn’t sign an employment agreement, if you are an employee and it’s in the scope of your employment, you’re already being compensated by your paycheck.

As we learned from Felice, being in a public place makes you fair game. So what makes a place private instead of public? This is where that famed “reasonable person” comes in. If a reasonable person would consider a place private, then your image shield goes up. People generally have a reasonable expectation of privacy when they are in their home. But even that is measured in degrees. You have a greater expectation of privacy in your own bathroom or back yard than you do when standing in front of a huge window in the front of your house or in your front yard next to the street. The law protects those who protect themselves.

And people protect themselves to varying degrees. The Amish do not have their picture taken because they believe that photographs are "graven images." They don’t even put faces on children’s dolls. And cultures exist where it is believed that taking one’s image is the taking of one’s soul. These folks are generally not on Facebook. People on Facebook are on the other end of the spectrum.

If you have read until here, you care about how your image is used and now know your rights when it comes to someone taking your picture. Don’t be Jennifer in the bar falling for an invalid legal argument. Next step, don’t mug for strangers. There’s no upside for you. Finally, don’t be bashful in asking even a friend where that picture is going. People don’t mind respecting your wishes. I was at a July 4th party once taking picture of my kids with others when the hostess of the party asked me not to say the party was at her house if I was posting the pictures on my personal blog. We have mutual friends and not all of them were invited to her party so she didn’t want to hurt anyone’s feelings. She was absolutely right and I’ve never identified the host of any gathering since. Most friends will respect your wishes. You just have to take the time to make those wishes known.

Your image is more important than ever in the era of social media so protect your rights. The more you do, the more the law will protect you.

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Gant Redmon, Esq., is General Counsel & Vice President of Business Development at Co3 Systems. Gant has practiced law for nineteen years; fifteen of those years as in-house counsel for security software companies. Prior to Co3, Gant was General Counsel of Arbor Networks. In 1997, he was appointed membership on the President Clinton’s Export Counsel Subcommittee on Encryption. He holds a Juris Doctorate degree from Wake Forest University School of Law and a BA from the University of Virginia, and is admitted to practice law in Virginia and Massachusetts. Gant also holds the CIPP/US certification.