Unauthorised use of your image in a photograph
Taken from this document at The Arts Law Centre of Australia
Unauthorised use of your image in a photograph.
What can you do to stop someone using your image in a photograph, film or video without your permission? With the introduction of new technologies such as digital video cameras and computerised enhancement your image (or a distorted version of it) could appear on the internet and be accessed by millions of people, without your knowledge or permission.
In Australia there is no specific law aimed at preventing the unauthorised use of your image (unlike the United States which has a law called the right of publicity).
The law in Australia
The areas of law in Australia which may be used to try and stop the unauthorised use of your image include:
1. Defamation; 2. The Federal Trade Practices Act and State Fair Trading Acts; and 3. The law of passing off.
Copyright law is of little assistance in preventing unauthorised use of an image. This is because the person who owns the copyright in an image will generally be the person that created it rather than the person who appears in it.
The publication of a person’s photograph without their consent is not in itself proof of defamation. The unauthorised use of the image would need to either lower the publics estimation of the person, expose the person to hatred, contempt or ridicule, or cause the person to be shunned or avoided.
For example, Andrew Ettinghausen, a well-known rugby league player, mounted a successful defamation case against HQ Magazine when it published a photograph of him in the nude without his permission. The court found that the photograph led him to be ridiculed because it showed his genitals to readers of a magazine with widespread readership thereby lowering the public's estimation of him by implying he had authorised the taking and publication of the photograph. See the Arts Law Centre of Australia's information sheet "Defamation" for more information.
The Trade Practices Act
Sections 52 and 53 the Federal Trade Practices Act and the equivalent sections of the State Fair Trading Acts prohibit commercial conduct which misleads or deceives consumers. To prevent the unauthorised use of an image under this law it is necessary to show that the use of the image would mislead or deceive consumers. The mere use of a persons image is unlikely to be found to mislead or deceive under this area of law unless that person is a celebrity or well known endorser of products. If a person is well known by the public as an endorser of products then the unauthorised use of their image in connection with a product may constitute misleading and deceptive conduct. This is because the public would be lead to believe that the celebrity is endorsing the product. For example, the Olympic swimmer, Kieran Perkins successfully sued Telstra for the unauthorised use of his image in an advertisement. The advertisement used a photograph of Perkins wearing a swimming cap bearing the Telstra logo, accompanied by a statement promoting its services in preference to those offered by Optus. The court held that the use of the photograph together with the statement implied that Perkins preferred Telstra's service to that of Optus when in fact he had not made a statement about his preference.
Perkins' status as a celebrity known by the public as an endorser of a variety of products assisted the court to find that Telstra's conduct was misleading and deceptive. However, if the court finds that there is nothing in the unauthorised use of the image which misleads or deceives it will not find in favour of the person whose image is used.
The law of passing off is similar to the law of misleading and deceptive conduct. It is designed to protect the reputation of a business from misrepresentation. To succeed in an action for passing off the complainant must have a reputation and there must be a misrepresentation by the defendant in relation to the business which causes damage or the likelihood of damage to the business. Because a reputation is required to successfully establish passing off this law is of limited use for the "average person in the street".
For example, in the case of Henderson v Radio Corp Pty Ltd, a photograph of two well known professional ballroom dancers (the Hendersons) was used without their permission on the cover of a ballroom dancing record. The court found that in using the photograph the record company had denied the Hendersons the possibility of an opportunity to exploit their image for their own gain.
There is no general right of privacy in Australia. Existing privacy legislation in Australia is of little or no use in the prevention of the unauthorised use of a persons image because it is primarily concerned with the privacy of information held by government instrumentalities and the impact of business conduct on the privacy of individuals.