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Suppose that A worked at an amusement park. Someone from management took A's picture as A was working at a ride. Since then, they have used that picture on billboards (for the past 2 summers) and on Facebook posts, making A the face of their hiring efforts. They continue to use this picture to advertise their job postings.

  1. Can A successfully demand to be paid for this use of A's image?

  2. Can A force the park to stop using the image?

  3. What language, if any, in A's employment contract would authorize the park's action?

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    Did you sign a release form ?
    – Hilmar
    Feb 10 at 3:49
  • What country is this?
    – Ron Beyer
    Feb 10 at 4:06
  • @Ron Beyer, sorry - United States. I updated the tags appropriately. Feb 10 at 14:46
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    Have you asked them to take it down? What was their response?
    – Unfair-Ban
    Feb 10 at 15:13
  • Is some US states there is a "right of publicity" which requires permission (often conditioned on payment) for such uses. In other states there is not. What state would be involved here? Feb 10 at 15:29
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Under Ohio law, you might have a case: here are the most relevant statutes. The right of publicity is "the property right in an individual's persona to use the individual's persona for a commercial purpose", and you have that right. Per ORC 2741.02, "except as otherwise provided in this section, a person shall not use any aspect of an individual's persona for a commercial purpose...", as long as you are not dead and have not given written consent for the use, a question that you should research carefully), also it must not be "in connection with any news, public affairs, sports broadcast, or account", not political campaign, and also as long as you are "an individual whose domicile or residence is in this state" (with various exceptions to the exceptions).

If they have violate your right of publicity, you can sue them, but there is a requirement to notify the trespasser (your attorney will deal with this, I mention this just in case you decide to try a DIY lawsuit). If you win, you might get actual damages (i.e. how much did you actually lose), which includes "any profits derived from and attributable to the unauthorized use of an individual's persona for a commercial purpose", or at your discretion between $2,500 and $10,000. There is also the option of punitive damages which adds as much as twice the compensatory damages award, if their act was "really bad" (a very complex calculation, but basically "not an innocent mistake").

Then there are other exceptions where the law does not apply, much of which doesn't have clear relevance but the provision "The use of the persona of an individual solely in the individual's role as a member of the public if the individual is not named or otherwise singled out as an individual" is likely to be a problem for a lawsuit.

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    I was about to edit the Ohio-specific law into my answer, but it would basically duplicate the above. My answer may still be useful for others who are in the US, but not Ohio. Feb 10 at 19:02
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The LII article on "Publicity" says:

The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

In the United States, the right of publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a right of publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy.

The Nolo page on "The Right of Publicity" says:

The right of publicity is the right to control the commercial exploitation of a person's name, image or persona. This right is traditionally associated with celebrities because the name or image of a famous person is used to sell products or services. For example, it is much easier to sell a t-shirt if there is a picture of Michael Jackson or Madonna on it. However, the unauthorized use of the image of Michael Jackson or Madonna for these purposes would infringe their right of publicity. This right only extends to commercial exploitation. Information uses such as articles at celebrity websites are permissible.

The use of the name, likeness or persona for news, information, or public interest purposes is not a violation of the right of publicity. For this reason, Taylor Swift cannot prevent the use of a photo of her in the National Enquirer. The right of publicity is not only for celebrities. Any person whose name or image is used to sell products may claim a misappropriation of this right.

...

The right of publicity is a matter of state law. Some states, such as California, Florida, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia and Wisconsin have passed statutes regulating these rights. Other states do not have "right of publicity" statutes but have established common law rights under caselaw. Some states have neither a statute or caselaw regarding the right of publicity.

The Restatement of Torts, Second, § 652C says:

§ 652C Appropriation of Name or Likeness One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comments:

a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.

b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

Language in the employment contract granting the park the right to use the employee's image for the purpose of promoting the park would probably prevent any suit for appropriation of the employee's image. There is no specific form or words required, anything clearly indicating that intention would probably suffice. It would be wise to have any specific language reviewed by a lawyer.

In order to file suit one would have to do research as to the exact statute or caselaw in the state involved, probably the stat where the park is located or where the employee lives. A lawyer knowledgeable in privacy law would be very helpful in such a matter. Available damages might be small, making a suit unprofitable. A lawyer could advise on probable damage amounts.

Ohio

This page from Digital Media law summarizes the statutory and common-law (court made) protections for the right of publicity in Ohio, and cites several relevant count cases.

This page from Rothman's Toadmap also summarizes the state of Ohio law on this issue, and mentions Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, a case in which the US Supreme Court upheld an Ohio suit against First Amendment claims (1977)

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