Legal Question in Entertainment Law in California

Re: Use of photos

Obviously, the safest course for you would be to remove the photos and replace them with images of just yourself. You could also wait until your friend turns 18, then get his written consent to use the photos containing his likeness. However, and based on my understanding of a dating service �profile,� I don�t believe you have anything to worry about so long as the photos are used just for your own benefit and the dating service never re-publishes them to promote its own business.

The California Civil Code, section 3344, makes it unlawful to knowingly use another's name or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without that person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian. The person who violates this section shall be liable to the complainant for any damages sustained by him, in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him from the unauthorized use.

That the young man�s face is not viewable in your photos makes no difference. A person is deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use. It is enough that your friend�s mom can recognize him, even if she is the only person on earth who can.

However, the use of one�s name or likeness in any news, public affairs, or sports broadcast is not a use for which the person�s consent is required.

I understand a dating service profile to be a means whereby you can post information about yourself, either on a website or in a �hard-copy� database, to attract someone who appears compatible with you into entering a dating or some other social relationship with you. So long as this is the sole purpose for which you are using the photos, and not, for example, to promote your budding acting or modeling career, your use of the photos should be deemed either non-commercial or connected to a �public affairs� use. Neither your friend, nor his mom could complain of unlawful �appropriation� in that instance.

However, a problem might arise if the dating service uses the photos to promote its own business. That would then implicate the commercial use of your friend�s likeness, and place upon you the duty to obtain either his or his mom�s consent. If any reasonable possibility exists of this happening, with or without your consent, then I would advise you to remove the photos.