Removal of Personal Images on Auxiliary Company Public Facebook Page

[RedPelerin]

Whether that right is infringed it is debatable here. I think there is a possibility that it is since they are a commercial company posting online. Everything they do has to be with a commercial purpose, especially since the person that is posting is hourly paid.

Also, it's very difficult for me to understand from all your replies (which are much appreciated) how little private individuals like me are protected online these days. Is that because there are no laws or regulations? I noticed that a similar thing is happening to phone spam callers (to the point that even the blocking apps don't work), yet our emails are highly protected with options to report as spam, unsubscribe, etc.

[PayrolGuy]

Also, it's very difficult for me to understand from all your replies (which are much appreciated) how little private individuals like me are protected online these days. Is that because there are no laws or regulations? I noticed that a similar thing is happening to phone spam callers (to the point that even the blocking apps don't work), yet our emails are highly protected with options to report as spam, unsubscribe, etc.

There are laws against many types of phone spam callers. The enforcement of the laws is problematic because of technical and budget reasons.

Also, you posted earlier

As a journalist and photojournalist I am required to obtain a release for any recognizable persons in each image before publishing publicly.

That is simply not universally true. And I'd be interested in a situation where you think it is true.

[pg1067]

The issue that relates to you is whether the company is infringing on your right of publicity. California, being home to Hollywood and one of the world centers for movie, TV, and music production has a pretty strong set of right of publicity related laws. If you can make the argument that the company is using it commercially, which may include any use by the company to promote its business, you may be able to force the company to take the photos down or sue for the infringement of your right of publicity. You'd want to see a lawyer familiar with that particular tort for assistance with that. The lawyer can start with a letter to the company that outlines how the company is infringing on your right of publicity (the company likely has no idea such a right even exists) and that may be enough to get the company to down the photos. If that doesn't work the lawyer can help you in pursuing an injunction to force the employer to take the photos down.

I didn't carefully read all of the responses in this thread, but this appears to be the only one that really covers the correct issue.

I'll echo what TM wrote: there is no copyright issue here. End of discussion.*

The right of publicity is codified in California Civil Code section 3344 (courts continue to articulate that there is also a common law RoP, but it's not appreciably different from the statutory right). As you can see, the use of your likeness must be "on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services." If you can't prove that, then you have no valid claim.

* - That the person depicted in a photo is not the copyright owner is of no moment. Federal courts have routinely held that the RoP trumps the photographer's rights to license the use of his/her photograph for a commercial purpose. See, e.g., Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001).

As a journalist and photojournalist I am required to obtain a release for any recognizable persons in each image before publishing publicly. Why shouldn't a real estate company be required to obtain a release as well?

Required by whom? The law does not necessarily require this.

Also, it's very difficult for me to understand from all your replies (which are much appreciated) how little private individuals like me are protected online these days. Is that because there are no laws or regulations? I noticed that a similar thing is happening to phone spam callers (to the point that even the blocking apps don't work), yet our emails are highly protected with options to report as spam, unsubscribe, etc.

You're speaking very abstractly here, but yes, there are relatively few laws/regulations. Of course, that's not very different outside the online world, and lots of folks have a very poor understanding of what privacy protections exist.

[RedPelerin]

I am not sure that it is universally true but in the United States it is.

You need a release form for each recognizable person in the image. I believe the exception is when the image portrays 8 people or more. The fact that they posed for you in the image it does not give you the right to publish or share it. Thankfully, I have never had this issue since most people like to be published and/or interviewed and they were also expecting it. However, if any subject contacted me requesting to have their image taken down, I would most likely have to respect their right to privacy without a signed release form (which I recently learned from a photography convention that it also needs a witness).

My perception is that the right of privacy - especially of private individuals - precedes any copyright most of the time, even if those images are captured in public spaces. In my case, these images were taken on a private beach location at a private company event by invitation only. The community was also guard gated and with a list of approved names to enter.

So why is that a commercial business (in this case a real estate brokerage) is allowed to take random images at events and use them without notice to the subjects portrayed?

[PayrolGuy]

I am not sure that it is universally true but in the United States it is.

You need a release form for each recognizable person in the image. I believe the exception is when the image portrays 8 people or more. The fact that they posed for you in the image it does not give you the right to publish or share it. Thankfully, I have never had this issue since most people like to be published and/or interviewed and they were also expecting it. However, if any subject contacted me requesting to have their image taken down, I would most likely have to respect their right to privacy without a signed release form (which I recently learned from a photography convention that it also needs a witness).

My perception is that the right of privacy - especially of private individuals - precedes any copyright most of the time, even if those images are captured in public spaces. In my case, these images were taken on a private beach location at a private company event by invitation only. The community was also guard gated and with a list of approved names to enter.

So why is that a commercial business (in this case a real estate brokerage) is allowed to take random images at events and use them without notice to the subjects portrayed?

I can't find one statement in what you just wrote that has any basis in truth in the US.

[pg1067]

I am not sure that it is universally true but in the United States it is.

You need a release form for each recognizable person in the image. I believe the exception is when the image portrays 8 people or more. The fact that they posed for you in the image it does not give you the right to publish or share it.

Where are you getting this from? In my prior response, I asked, "Required by whom?" but you didn't answer that question. It sounds like you're writing things that you were once told but which aren't accurate statements of the law. Perhaps they are policies of one or more current/past employers, but employers often has policies that go beyond what the law requires.

In fact, no law requires "a release for each recognizable person in the image" in order "to publish or share" the image" (and it certainly doesn't matter how many people are in the image. What does matter is whether the image is used for a "commercial purpose." If a person voluntarily poses for a photograph and the photograph is published for a non-commercial purpose, that is almost always legal.

a signed release form (which I recently learned from a photography convention that it also needs a witness).

I'm guessing that whoever gave out this information at this convention was not a lawyer. No law in any state requires photo releases to be witnessed (or notarized). Does having a witness provide you with an extra level of certainty that the signer can't claim he/she didn't really sign? Sure, but that doesn't mean it's a legal requirement.

o why is that a commercial business (in this case a real estate brokerage) is allowed to take random images at events and use them without notice to the subjects portrayed?

You might have an argument that the private nature of the event was such that the company may not post the photos in any sort of public manner. Beyond that, however, you are asking a question based on a premise that isn't true.

[Taxing Matters]

I am not sure that it is universally true but in the United States it is.

You need a release form for each recognizable person in the image.

Again, there is no law that mandates you have that release form. The reason you need it is to protect yourself from being successfully sued for violating the right of publicity of the subject of the photo. For example, a newspaper may use a photo taken of a news worthy event without obtaining model releases from the subjects when the purpose is to report on the event depicted because that is not a commercial use of the photo.

The fact that they posed for you in the image it does not give you the right to publish or share it.

Posing for you does not mean they have given you you consent to use their image for a commercial use, thus infringing their right of publicity. But the photo could be used in ways that do not violate any rights of the subject without the subject's consent. The whole reason photographers are encouraged to get model releases at the time they take the photo is so that they may later use the photo for a variety of purposes, including commercial ones, without then later having to track that person down to get the release. It's a protective measure. It may not always be needed, but if you get it and don't need it you've not lost anything. Don't get and then have need of of it later and you may be stuck.

My perception is that the right of privacy - especially of private individuals - precedes any copyright most of the time, even if those images are captured in public spaces.

It's not a case of one trumping the other. They cover two distinctly different situations. Copyright law deals with the right to control the use and distribution of the image, whether it has any people in it or not. The right of publicity protects the use of a person's name and likeness for commercial purposes.

So why is that a commercial business (in this case a real estate brokerage) is allowed to take random images at events and use them without notice to the subjects portrayed?

Because no law says they must have consent before posting the picture. If by posting it they violate the person's right of publicity they run the risk of getting sued for that. If the use doesn't violate the right of publicity or any other right that the subject has then the photo can be posted regardless of whether the subject likes it. As I think someone else already noted, many Americans seem to think they have a lot more privacy rights than they actually do.

[RedPelerin]

I am learning indeed, that we have less privacy rights than we realize on a daily basis. I wonder if that is something that is being debated in law, especially with the advancement of the social media and technologies like face recognition in the near future.

I would like to add a small fact. My case is not a matter of me liking or not the images. In those images I was overweight and respectively going through health issues. At the time, I was also going through tremendous hardship due to the company's mistakes of which they are aware and have tried very hard to cover up. My request to remove those images is connected to more than a simple like or dislike button on Facebook, as I am sure it is in most cases.

The only question that remains is what right of publicity or any other right do I have as a private person? So far, it seems that my only right is to sue the company.

[pinknemo13]

I would recomend posting on your company page. Picture and screen shot of them saying working there. But on your post you would say that he is not working nor affiliated in anyway with company.

This would help you to let people know and also as a legal matter there is something public that warned others.

[lukemart]

Hello, thank you for your reply! I wish it was that easy. I already untagged myself and my name from the images. However we are part of a large network of realtors. That means many people in our network are still able to view those images, recognize me and so on. With face recognition technology advancing soon, the internet will most likely be able to make use of any public images which could automatically show up on Google search results and other browsers, software, etc.

Thank you for your reply! The reason why I left the company has created a hardship, not the images themselves. This company had an unauthorized group of agents which I joined, with which I signed a minimum two year contract and then noticed shortly the group's leader lack of standards, moral values and overall unprofessional behavior. With that being said, if I were to take this to the headquarters human resource department, it wouldn't make a pretty letter...It is in their best interest to respect my privacy and delete these images.

Hope it was helpful?