Legal Question in Intellectual Property in California
Good Morning:
I have a pretty generic question....
My husband works for a company in California that has their sales team members names and photos listed on the company website. They all know this. Apparently if you Google Search a name and click on images on the internet, it shows the photos of my husband (the same one listed on the company website) his name underneath the photo and the name of the company. Is this legal?
He does not remember signing any document/consent forms. This is what he found online:
Generally speaking, no one can use your image for advertising purposes without your consent. Some employers will include a waiver of your publicity rights in the documents you sign when you start working for them, but those are not very common. Indeed, even with such a waiver, many employers will still make employees sign a special Model Release document if they are going to be used in a special advertising campaign. If you did not sign such a waiver or release document, you may be able to sue your former employer for a share of any profits earned during the infringing advertising campaign. But to determine whether you have a case, you should contact an attorney in your area. Your local bar association should be able to refer you to an appropriate attorney. (Sometimes you can receive a discount on the initial consultation when you use the bar association�s referral service, so ask about that.)
Thank you for your help
1 Answer from Attorneys
First, when someone asks "Is this legal?" I feel compelled to start out by saying "It depends upon what you mean by 'legal.' Bank robbery is illegal by any definition, as is jaywalking and running a red light. But is it 'illegal' to be four days late paying your rent? Sure, it's a breach of contract, but not something for which you'll go to jail. Is it 'illegal' to cut across the corner of your neighbor's lawn to save a few steps? Sure, it's a technical trespass, but nothing that would interest the police or the D.A. And your chances of being sued are about 1 in 5 million. If you were sued, the neighbor would win about $1 in damages.
So, here, I'd say it is better to ask whether your husband has (1) a right to demand that his picture be removed from the company Web site, and (2) a good cause of action for money damages. As to #1, my offhand guess is that he has that right, but by asserting it he would show that he is not a team player and thereby damage his career, if not get fired. As to #2, I strongly doubt that he could prove profits to the employer or harm to himself resulting from the Web picture that would be a basis for a jury to award significant money damages. A company announcement disclosing the identity of its officers may technically be advertising, but it is not the kind of ad campaign for which actors and models are paid big bucks, and the jurors will not be sympathetic.
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