Lights, camera..... lawsuit?

Street photos, social media photos, brand photos, stock photos.

You may have found these online, purchased a right to use them, taken them yourself or arranged to have them taken. The photographer and the subjects should be pleased to have received reputational benefits or sponsorship opportunities. It’s a win-win and everyone’s happy.

But are they?

In the social media age, brand reputation is everything. It pays to take note of the following:

Intellectual property rights

A photo posted online or on social media is not necessarily free for use. Copyright, trade mark rights and moral issues may come into play. Even where a photographer is engaged on your behalf, intellectual property rights will need to be carefully examined. To ensure that intellectual property rights have not been infringed, you should assess the following:

who the intellectual property owner is;
any statutory exceptions; and
the uses for which the owner might consent.

Confidentiality

Depending on the context of the photograph, confidentiality issues may also arise.

A famous example was the photo taken of supermodel Naomi Campbell leaving a narcotics anonymous meeting. Campbell successfully sued the Daily Mirror. Although the finding was ultimately decided on an invasion of privacy, confidentiality issues were involved.

As noted by the House of Lords, the key issue in assessing a confidentiality breach is whether there has been a disclosure of confidential information.

What are you suggesting?

Use of photos in certain ways may:

indicate an association between 2 parties which is untrue; or
otherwise suggest acts of a defamatory nature.

This can lead to actions for defamation and misleading and deceptive conduct, both of which could be avoided by obtaining consent from the subject of the photograph.

Privacy

An action for invasion of privacy is not well established in Australia though there are indications that this may change in the future. Certain other jurisdictions have generally taken the approach that photos depicting private affairs, where the intrusion would be considered highly offensive to a reasonable person, will constitute an invasion of privacy. For publishers down under, this should be kept in mind given images made available on social media are accessible worldwide.

Keep stock of your images.

In using externally sourced images, you run the risk that those images were not from a reputable source and may, in fact, be infringing the intellectual property rights of the original author. Get in touch with an expert to review any relevant contracts, and do yourself a favour – develop an appropriate social media and marketing policy with these issues in mind.

^{Intellectual Property.}
^{Trade mark storm in a soup bowl.}
^{Architectural plans copyright or wrong.}