The Legal Blog

Have you heard the hullabaloo about BJ Novak’s image going viral?

It’s a fascinating story….well at least to this geeky attorney.

So here’s the scoop:  

Apparently years ago someone put an image of Novak on a public site.

You know the ones, where you get free images all the time.

With no guarantee that you really can use them.

Now, “The Office” star’s image is showing up on all kinds of products – from face paint to razors to cologne.

Novak actually has expressed on social media that he thinks it’s funny, but if it was you – would you be laughing?

Would you really want your face on rechargeable hair clippers?

ACTUALLY, YOU CAN LEGALLY PROTECT YOUR IMAGE

BJ NOVAK CAN LEGALLY PROTECT HIS IMAGE

Let’s talk about what BJ Novak legally can do.

What you can do if this happens to you.

IDENTIFIABLE ITEMS IN FREE STOCK PHOTOS

Depicted items in images such as identifiable people typically require the consent of the person or the license of these rights. 

Most Free Stock Photo Websites disclaim liability for any legal responsibility. So for example, the Free Stock Photo Website typically doesn’t check that all the content in the images are risk-free. 

In other words, let’s presume that the person that took BJ Novak’s photo didn’t get a photo release from him.  Then that same person uploaded the image to a Free Stock Photo Website. Now, the companies that used the photo could be sued by Novak.

Anyone that uses Free Stock Photos is using the content at their own legal risk. For example, most Free Stock Photo Websites don’t check that all images in the photo are risk-free. The Website owner disclaims all responsibility and requires the user to indemnify (i.e. hold harmless) the Website if a third party makes a claim arising out of its use.

So when you use a Free Stock Photo, you are trusting that the Contributor legally owned and had the right to license its free use to you. If you use an image, and the Contributor did not, you can be legally liable to the true owner.

Apparently, in this case, it could not be determined who took the original picture.

So in actual fact, presuming BJ Novak never gave consent to use his image, all the other companies that used the image in their advertising would be legally liable for that use.

ANY USER OF A FREE STOCK PHOTO IS COMPLETELY RESPONSIBLE FOR ANY LEGAL INFRINGEMENT OF MODEL RIGHTS.

ENFORCING YOUR RIGHT OF PUBLICITY

The right of publicity is your right to control the commercial use of personal attributes including your image.  

WITHOUT YOUR PERMISSION, OTHERS CANNOT USE YOUR IMAGE.  

YOU CAN LEGALLY PROTECT THAT IMAGE.

THIS IS YOUR RIGHT OF PUBLICITY.

The right of publicity is your right to control the commercial use of your name, image, voice, likeness and other distinctive personal attributes.  In other words, your personality, including your gestures and phrases are legally protected.

WITHOUT YOUR PERMISSION, OTHERS CANNOT USE YOUR IDENTITY.  

Most states recognize the right of publicity under common law, statute, or both.  Many recognize a person’s publicity holds commercial value susceptible to exploitation. 

RIGHT OF PUBLICITY APPLIES TO CELEBRITIES AND NON-CELEBRITIES

While celebrities’ cases like BJ Novak’s make headline news, non-celebrity cases are on the rise because of social media.

Millions of people are visible, accessible, and yes, profitable on social media now.

BJ Novak can claim a right of publicity against all the companies that are using his image without consent; and profiting from that use. 

If BJ Novak sued the companies for the use of his image,  he could not only stop them from using the image, but could also receive compensation for the loss, even if he can’t prove harm.  

Lesson learned: If someone uses your image without your consent, you can legally stop them, and even receive compensation.

Want to learn more about protecting your image?  Schedule a free consultation with me today.

Photo credit: Leigha Karpinia