Quirky Question #216, Use of a Photograph of a Former Employee
A junior member of our marketing department left to join a competitor. While she was with us, she created numerous marketing brochures with photographs of her demonstrating our product. We received a letter from the competitor demanding that we remove her picture from our brochures and website and delete her name on any company materials. It would be very expensive to redo all of our marketing materials, can we ignore her request?
Answer: By Gabrielle Wirth
Of course we begin with a lawyer’s response – it depends!
There are two distinct issues here – whether you can continue to use the pictures of the ex-employee now that she has objected and whether you can use the employee’s name. In most states, you can continue to use the employee’s picture if you obtained her written consent. See for example NY Civil Rights Law §51, Cal Civ Code §3344(a); Mass. Gen Laws 214 §3(a); D.C. Code §12-301. The ideal consent form would include permission for the company to take, use, reuse, publish and republish photographs in any and all media both during and after employment and release your company from all liability in connection with such activities. Without consent, the laws of most states would not allow you to continue to use her photograph.
We note that in most states there would likely be no invasion of privacy if the photos had been taken from the public streets, if your former employee could not be recognized in the photos or if the photos were not being used for commercial purposes.
As to the continued use of the employee’s name, a recent Minnesota case, Wagner v. Gallup Inc, directly addressed the issue. Wagner worked for Gallup as a consultant, and had coauthored two books for Gallup, one a New York Times best seller. After his termination, the Company continued to include on its website reference to the employee, his books and the fact that he was a best-selling author and a Company principal. The Court denied the former employer‘s motion for summary judgment holding that the continued use of the employee’s name could constitute invasion of privacy based on appropriation of his name or likeness. Minnesota, like many states, recognizes the tort of appropriation as an invasion of privacy tort committed when one “appropriates to his own use or benefit the name or likeness of another”. The former employee had objected to the use of his name post-termination and the website had been updated in other respects several times since then but references to Wagner had not been deleted or updated. Therefore, the court held that Gallup’s failure to update the page to at least identify him as a former employee would entitle a jury to find that Gallup knowingly appropriated the use and value of the employee’s name.
The bottom line is that if you do not have the former employees written consent, you should stop using her photograph on your marketing materials and you should remove her name from the Company’s website.