When using employees’ photos, best to ask permission

Q         Our company has just taken pictures of key employees for use on social media, brochures, and elsewhere. Are we required to get consent before we use the pictures?

A   There’s no federal law or regulation requiring you to get consent before using employee pictures in promotional materials or online. Employers in West Virginia, however, should be aware of the common law claims of right of publicity and right of privacy before deciding whether to skip the photography release form. The right of privacy serves to protect one’s “individual personality and feelings,” while the right of publicity “protects the commercial value of a name or likeness.”

Under a right of privacy claim, an employee could sue for the appropriation of their name or likeness and try to seek damages for mental distress caused by using their picture. West Virginia courts recognize the incidental use exception, however, which would likely apply to the use of employee photos. The exception allows for the use of one’s photograph as a matter of convenience or to represent the likeness of a certain type of person. So long as the picture isn’t published because of the individual’s particular likeness, it isn’t appropriation. Thus, in this instance, using an employee’s picture in a brochure to represent employees would be lawful—even without consent—because it’s the employee’s role, not the actual employee’s particular likeness.