I got peppered with questions at Northern Voice regarding a bloggers right to use a photo of a person and an individual’s right to keep their photo off another’s blog.
As much as it may come down to privacy, right of publicity and other laws, my answer was that it would come to down to what’s practical if you’re considering suing someone. If a small time blogger is wrongfully using a photograph and they refuse to remove it, why sue? You sure are not going to collect any damages. You may be able to make demands of their host but that’s an uphill battle.
Now when it’s larger defendant, lawyers and their clients act differently. Take an Ohio woman deciding to sue Yahoo for $20 million when she discovered a photo of herself being used in the sign-up confirmation email for Yahoo’s email system.
As reported by Mike at Techdirt, she’s got 3 separate law firms representing her, claiming her right of publicity was violated.
Of course, a right of publicity usually is to protect famous people who’s likeness actually has commercial value (such as, say, Tom Brady). It’s not clear what sort of commercial advantage Yahoo took from this woman. If they didn’t use her photo, they could have used one of a million other generic photos of random people.
Mike’s reference was to New England Patriots star quarterback Tom Brady suing Yahoo when Yahoo used his photograph in an advertisement for their fantasy sports service. “As a superstar sports player, he commands a ton of money for endorsing products, and people could interpret his image as endorsing Yahoo’s service.”
I agree with Mike that it’s hard to see what commercial advantage Yahoo took from this woman. There may be other grounds to prevent the use of here photo but no one is getting $20 million here – at least I hope not.