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Avoiding liability when using public photos to advertise on social media websites

published in McAfee & Taft tIPsheet | August 1, 2013

By Jessica John Bowman

Your company just hosted a successful public event — perhaps a fundraiser for a local charity. Now that the event is over, all that remains is to post photos from the event on your company’s Facebook page. Right?

Maybe. Although Facebook is certainly a convenient venue for promoting your company, it is important to use care when posting photos of public individuals enjoying your company’s services or participating in company-sponsored events. The use of such photos may, under some circumstances, form the basis for the common-law tort of appropriation. Fortunately, there are a number of steps you can take to minimize the risk associated with using photos from public events on social media platforms.

First, whenever possible, post a conspicuous notice on any tickets, entry gates, and event materials notifying attendants that, as a condition of entry or participation, they agree to allow images of the event to be used in future advertisements. (If you are sponsoring an event hosted by a third party, ensure that the release allows sponsors to use event footage, and always obtain the host’s permission). If you can obtain signed releases from some of the attendees — such as a small group of key participants — do so. This is particularly important if well-known individuals have agreed to participate in, emcee or judge the event.

Second, when choosing photos for use in advertising, give preference to those depicting a large number of people, such as panoramic crowd shots. This will make it more difficult for any one individual to claim that you are trading off of her individual image.

Third, carefully scan your selected photos, and avoid using any that depict individuals in potentially embarrassing situations, as well as those that depict well-known individuals who have not signed a written release. In the event that an individual identifies himself in a photo and requests that the photo be removed, immediately honor the request.

These are just a few steps you can take to minimize the risk of liability resulting from your company’s use of social media as a form of advertising. Of course, the opportunities for using social media as an advertising tool are constantly evolving – as are the pitfalls. When you have questions about the risks associated with a particular practice, talk to your attorney.