Is Using Employee Photos in Marketing a Legal Risk?

Published on: 03/06/2021 | Updated on: October 25, 2024

Using employee photos and videos, be it on the website or a recruitment brochure, is probably a good way to start a digital marketing campaign. However, while this is a good way of showing your company’s personality, employers should be wary of various legal implications of doing this, as this practice is becoming riskier. Outlined below are some common concerns of using employee photos and videos that employers should know.

 

Data Protection Issues

Taking pictures and videos of your employees basically involves personal data, which subjects the employer to GDPR obligations. The definition of personal data, according to GDPR, includes a person’s image. For instance, your business may decide to use images or words from an employee as part of marketing literature. The employee has to be interviewed and photographed to appear in the poster and offline or online adverts.

Even though they are workers of the company, they still have privacy rights that guard the use of their photos, video, and voice. That said, it is prudent to ask for permission or consent from the employee. In most situations, the answer depends on the presenting circumstance, and the employee may object.

Interestingly, no federal laws prohibit employers in the US from using employee photos and videos. However, state-specific laws, such as the California Civil Code Section 3344 and the Revised Code of Washington 63.60.010, restrict how brands should use employee pictures, videos, and voices for marketing purposes. You can also start your own startup by getting an LLC in California.

Basically, according to these laws, if someone shares an image in a public space without expectation of privacy, any other person can share, publish, or sell it, provided it isn’t used to promote the product or service. Everyone has a right to publicity, and one can control the commercial use of their name, identity, or likeness as a protected trademark. Therefore, using an employees’ photo without permission violates these rights and can attract a fine, and employers can be sued for punitive damages.

 

Intellectual Property

Apart from data privacy, the use of an employee’s image may create intellectual property rights. Intellectual property rights arise in several situations, including the specific campaign associated with the photograph. Employers should also be concerned with the employees’ moral rights that may arise during this period.

That said, employers should ensure that employees are assigned to these rights and waive moral rights. While this can be included in the GDPRs consent form, employers should word it carefully to make the consent legally binding and cover any IP rights that haven’t been covered under the standard IP clause in the employee’s employment contract. To avoid such issues, consult an expert on labor law.

 

Other Employee Demands

Even if your state doesn’t have specific legislation regarding the use of employee photos, there are other concerns to worry about before posting your employee on Facebook, website, and other marketing materials. What comes to most employees’ minds is if the company will pay them for using their photos and videos. Typically, the company should pay employees if using their photos generates some revenue.

Secondly, employers should also be concerned about the process of taking photos and videos, especially if the employer hires a third party to take the photographs or video recordings. Specifically, employers should check and ensure that the contract with the professional photographer transfers ownership of the intellectual property to the employer.

This is important since most professional photographers’ contracts state that photographers retain ownership rights of the photos, even if there was an oral agreement. That aside, include extra protection when signing the contract with the photographer by protecting yourself from IP infringement liabilities that can be passed to you if the photographer uses any work created to market their services.

Employers should also be cautious to avoid breaching consent agreements. For instance, an employee may give consent that allows an employer to use the photos only in a printed hiring brochure. However, if the employer uses the images on their websites or other online platforms, they will have breached copyright issues.

Some employees may simply be camera shy, have objections due to religious and philosophical reasons, fear stalking, or raise concerns surrounding the nature of activity featured in the promotional photo or video. That said, employers should consider and address employee queries and concerns.

 

Getting Employee Consent to Use Photos for Marketing

Getting consent from your employees is not only a legally good idea but also shows some respect and promotes a positive employer-employee relationship. While most employees might not think twice before giving consent, others may raise all manner of issues that require reassurance. Therefore, before publishing photos of your employees, it is important to obtain consent, which should be granted explicitly and not implicitly.

Fortunately or unfortunately, the law doesn’t specify how consent should be given. While it can be granted verbally, it is prudent to capture it in a written form for evidence purposes. The consent should specify the scope, such as the agreed time of publication and the size of the photo to be used.

However, employers might be exempted from the obligation of obtaining consent in some situations. Such cases include;

• If the employee’s photo or video is part of a recording made during a public event
• If the employee is already a public figure
• If the employer agrees to pay for using the employee’s photo

If any of the above situations don’t apply and employers use an employee’s photo without consent, the employee can file a legal claim accusing the employee of breaching his/her image protection rights under the copyright acts. If the breach is culpable, the affected employer may be penalized and ordered to pay for relevant damages.

 

Other Practical Considerations for Using Employee Pictures

Apart from legal issues, employers should also consider several practical issues before using an employee’s picture. Important practical considerations are cost and the businesses’ budget. For instance, if the employee is fired for bad conduct, quits, or stops working for the company, the social media or website marketing campaign becomes obsolete. This is probably the biggest risk to using employees’ photos in marketing materials.

While website images can be updated and social media feeds deleted, these posts cannot be erased completely from the internet. Besides, it will cost the company to replace them, especially if it includes printed or hard copies.

 

Bottom Line – Should You Use Employee Photos?

Regarding the issue of using employee photos in marketing, while some employees overshare and won’t have an issue being included in the company’s marketing effort, others may have or develop concerns later. Therefore, employers should get consent, especially in written form, to reduce the risk of liabilities. You should also consult an employment lawyer for expert advice.