I was recently interviewed on Fox 28 about the reasonable expectation of privacy when Councilwoman Johnson filed a legal action after being photographed in public. This article gives some a more detailed explanation of a person’s right to his or her likeness when photographed in public.
Your right to your image and protection against unauthorized uses of it are covered by two legal claims:
(1) Invasion of privacy through misappropriation of name or likeness (referred to as “misappropriation”); and
(2) Violation of your “right of publicity.”
The invasion of privacy through misappropriation and the violation of the right of publicity are quite similar; indeed, courts and legal commentators often confuse them. It is important to remember that right of publicity specifically refers to the right of an individual to make money from the commercial use of his or her identity. There are other ways to misuse a person’s picture/likeness, and these other violations are invasion of privacy through misappropriation.
In Georgia, the courts developed a common law right of publicity which protects a person’s name and likeness from use without consent for financial gain. “Likeness” generally refers to photographs or an obvious resemblance such as in sculpture, but the doctrine is not strictly limited to these categories of likeness. This common law includes a two-year statute of limitations on a right of publicity claim.
With photographs, a violation of the right to publicity would typically involve use for an exploitative purpose or with no consent. An exploitative purpose is generally the use for a commercial purpose such as using the photograph to advertise products or services or using the photograph on or in commercially sold products or services. For example, while your reasonable right to privacy would not extend to an individual taking pictures of you in a public park, if that individual used the photographs to create an ad for outdoor gear, you would have a case to sue for violation of your right of publicity. There are also non-commercial violations of the right of publicity. If, in this example, the photographer used your image in a blog post about the public park, the photographer should obtain your consent. It is a best practice to not use a photograph for which no consent to use has been obtained.
There is a limit to the right of publicity if use of a photograph is considered “newsworthy” as a “matter of public interest.” While the courts have not determined a precise test for what qualifies as a “matter of public interest,” they have established that there should be a reasonable connection between the newsworthy event and the use of the individual’s likeness. Nationally, courts tend to view the use of likeness when it comes to news and commentary as a constitutional privilege bestowed by the first amendment and therefore often take a broad approach to what qualifies as “newsworthy” or a “matter of public interest.” A violation of this use would be a failure to establish a reasonable connection between the photograph and the newsworthy event it is being used to illustrate. In the above example, if your photograph were taken in the public park at a Fourth of July fireworks display and was used in a newspaper article about that event, this would constitute a reasonable connection. On the other hand, if a photograph were used on the cover of a magazine and Fourth of July Fireworks did not appear in the magazine, the subject could claim a violation of right of publicity.
Councilwoman Johnson was attending a public forum when her photo was taken. By definition, a public forum is not private. The photo was used to report a story that is a matter of public interest. Thus her right to publicity was not violated. Her right of publicity would be violated if the person who took the photo tried to use it for commercial gain. Even if, as she claims, the photo was taken at a closed-door meeting, a case could still be made that reporting on the event is newsworthy and in the public’s interest.
While people should not expect the law to shield them from being photographed in public, it does prevent those images from being used by others for commercial gain. If an image of you or your likeness is used in a newsworthy manner or a matter of public interest then you don’t really have much control over it. The best practice, of course, is to utilize common sense approaches to dignity and decorum at all times and avoid embarrassing situations in the first place!