Do you ever take photos of clients, customers, attendees, friends, or colleagues, and use them on your website or blog?

Do you have *express written permission* to use those photos for that purpose?

Um, yeah. You may want to work on that.

According to the Complaint, back in 2010, an employee of Apple, Inc. took photos of Abbey Dykhouse and her dog, and later asked Ms. Dykhouse to use the photo in Apple’s “demo libraries” of photography. It is unclear if any permission was given or what the exact terms of the permission were (such as for what purpose or what timeframe).

The photo is allegedly being used in Apple’s demo libraries, and the Apple employee is also allegedly selling the photo on the employee’s personal freelance photography site, without any compensation to Ms. Dykhouse.

So in January 2015, Ms. Dykhouse sued Apple and the Apple employee in San Francisco Superior Court for statutory and common law Misappropriation of Likeness, asking for actual damage, statutory damages, profits, and punitive damages. 

Under California law (and similar laws in other states), each person has a Right to Privacy over their likeness (aka how they look).

If someone wants to use your likeness for an advertising, non-news purpose, they must have your permission, or you can sue them for damages. In California there is a statute (CA Civ. Code Section 3344) that addresses the issue, and there is also a common law (judge-made law) action for misappropriation of likeness.

Here, both Apple Inc. and the employee are allegedly using the photo for a non-news, commercial purpose—as part of a photo library for customers (presumably saving them money because they don’t have to pay for stock photo) and directly for sale as part of the employee’s personal photography site. There will be debate about whether there was any permission (the facts are unclear so far), whether the use falls under section 3344, and the amount of damages.

While Apple Inc. can easily handle the attorneys fees to defend this kind of dispute, most small business owners, bloggers, and photographers would have a problem.

If you want to use photography of a person for any advertising or other commercial purpose, you must get their permission.

The permission doesn’t need to be in writing (sometimes people record it on the video itself), but it will be *much easier* to prove if you have a clear, written release, stating that you can use the photo for your intended purpose & over your intended timeframe.

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