Anne Di Grazia, a student in Jon Pfeiffer’s Fall 2012 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the question: “While walking on the Promenade in Santa Monica an energy drink company gives you a free sample of their newest flavor. An employee of the company snaps a photo of you trying the drink. Several months later that picture is used as a part of a national ad campaign without your permission. Do you have any recourse?”
Photographers today are protected by the First Amendment and stay true to the mantra, “If you see it you can shoot it”. If a person is in public area with a camera they have the right to take a picture of whomever they please; it does not matter who they are or what they are doing it is perfectly legal. However, this is not applicable in all cases. The only time that someone has recourse when being photographed is on private property, in the restroom, in the tanning salon, in the gym, and if the photo is being sold for an advertisement. In the case of the essay prompt above, as the victim, I would be able to sue the energy drink company for publishing my photo without my consent.
All photographers that plan on using their photographs for commercial use must have everyone being photographed sign a model release form prior to using the photo. Without the signing of the form the photographer puts himself/herself in danger of being accused of violating a persons right to privacy and publicity. In the case of Munden v. Harris, jewelry owners used a little boy’s picture to advertise their business without consent. This was a violation of privacy, which concluded in this law being established, “one has an exclusive right to his or her picture, on the score of its being a property right of material profit.” The conclusion of the case of Muden v. Harris would be a supportive model of the mach example above. In conclusion, I (the photographed) have full authority over the photograph taken of me for advertising purposes and I will sue the energy company for using my photo without my prior consent; because this was a violation of my identity, privacy, and publicity I have legitimate recourses and should have no problem winning my case.
Anne Di Grazia is a senior at Pepperdine University majoring in broadcast news with emphasis in international studies.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.