Professor Susan Scafidi explains why it is so difficult to sue businesses and organizations who are using photos from public social media accounts and the relatively nascent employment of right-of-publicity laws in the digital age.
Imagine finding that a strip club is using the bikini pictures you posted to social media from your beach vacation to promote its end-of-summer party.
What could you do about it, legally?
Under intellectual property law, unless your image is worth something to the marketplace, the answer might be nothing.
“Given that people are offering images for public consumption on a regular basis in a historically unprecedented fashion, there are definitely more options for misuse” than ever before, Scafidi said.
Right-of-publicity laws, a form of intellectual property, protect people’s personas or likenesses regardless of fame. They’re particularly important in “an era where privacy is extremely difficult to obtain,” Alan Behr, an IP partner at Philips Nizer LLP in New York, said.
But there’s no clear federal law in that area. Around half of U.S. states have right-of-publicity laws, creating a patchwork of requirements that aren’t always plaintiff-friendly. For example, New York’s law has a one-year statute of limitations, which Scafidi called a relatively short time to discover a harm and bring a case.
“You have to work quickly, and even then you can’t show damages necessarily if you haven’t commercialized your image,” Scafidi said.