NY Case Addresses Publicity Rights for People in the Background of Social Media Photos
This month, we posted about a lawsuit that an NBA Hall of Fame player filed against a company that allegedly used his image to sell products without his permission. Regardless of how that case turns out, it’s pretty clear you shouldn’t use a celebrity’s image in an ad without written consent. But what about cases that are less clear, such as a person in the background of a photo that your company posts on its social media account? A recent NY appeals court decision touches on this issue.
紐約以在社群媒體上傳名人照涉及知名度議題為背景而累積案例。本月，我們po上一個關於NBA名人堂球員被一廠商未經該球員同意而利用其圖像來銷售產品之訟案。諸不論訴訟結果如何，你不可未經名人書面同意在廣告中利用其圖像，這點很清楚。但有些情狀案例則不明確，例如：你的公司在其社群媒體帳號上傳一張名人在現在照片背景中的照片。一則紐約上訴法院最新判決涉及到此爭議。

In 2014, a woman attended an event at a DASH, a boutique store founded by Kim, Kourtney, and Khloé Kardashian. The assistant to a stylist for Kim Kardashian published a photo from the event on her Instagram account. Although the photo allegedly focused on the assistant and stylist, the plaintiff appeared in the background. The plaintiff hadn’t granted permission for the use of her image and filed a lawsuit alleging, among other things, that the use violated her rights under New York’s Privacy Law.

Like similar laws in other states, New York’s Privacy Law generally prohibits “[a] person, firm or corporation” from using ​“for advertising purposes…the name, portrait, or picture of any living person without having first obtained the written consent of such person.” The law further states that ​“a person whose name, portrait, picture, or voice is used within this state for advertising purposes…may…recover damages for any injuries sustained by reason of such use.”
與其他州的法律相仿，紐約州的隱私法通常禁止人、事務所或公司未經該人書面同意以廣告目的利用其姓名（名稱）、肖像或照片。法律進一步規範，該人的姓名、肖像、照片或聲音以行銷目的於本州利用就其受之損害將可請求損害賠償。

Citing pervious cases, the court determined that ​“the statute is to be narrowly construed” and ​“strictly limited to nonconsensual commercial appropriation” of a person’s name, portrait, picture or voice. The court determined that an image ​“is used for advertising purposes if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.”

Without much explanation, the court determined that the plaintiff failed to allege that the defendants had ​“used the plaintiff’s name, portrait, picture, or voice within this state for advertising purposes.” Reading between the lines, it’s possible that the court determined that a casual social media post wasn’t the type of ad envisioned by the law or that simply appearing in the background of a photo wasn’t enough to constitute a prohibited use.
沒有太多的解釋，法院判決原告未能舉證被告利以廣告目的利用原告之姓名、肖像、照片或聲音等情狀。在字裡行間解讀，法院判決隨意於社群媒體po照非法律要規範或者是單純在照片背景中出現不足以構成禁止利用。

If you’re taking photos of customers at one of your company’s events with the intent to post those photos on social media, getting signed releases – or at least posting a sign letting people know that they are going to be photographed – may be good ideas. But this case suggests that the risks of posting an image from an event on social media when you don’t have permission from people in the background may not pose a significant risk, at least in New York.