Davis Ingwers, 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?”
My initial reaction would be surprise. What would irritate me the most is the picture of me was used out of context. Maybe I didn’t like the drink and thought it was gross. Maybe I don’t care to be affiliated with that brand and dislike what they stand for or the image they project. It’s also possible that the picture taken of me I’m not a fan of, and I am offended that my image was used in such a public forum without my permission. In taking the sample drink, I was never made aware of the company’s intent to use me in advertising. That’s something I would have preferred to know about before drinking the free sample. Especially since the picture was used in a national advertising campaign. That’s a large area of exposure for a picture of me – and likely most people would be upset if they were unaware of how the brand was going to use it.
Additionally, I would want financial compensation for using my picture. If they had taken a picture for an advertisement using a model – that person would have been paid; why not me? It’s dishonest for a company to do that, and I would have a big problem there. I mean if it was a website or something I would have less of a problem with it, but in a national advertising campaign, its ridiculous for a company to use you as a face without permission. Honestly I would probably try and turn it into a negative advertising for the company by making it known that they used my picture without permission. It’s dishonest, unethical, and feels sneaky. None of those attributes make me want to continue being a customer if it all. So in conclusion, Yes, I would have recourse if a company did such a thing with my picture, and I would absolutely pursue financial compensation for that unethical action.
Davis Ingwers is a senior at Pepperdine University majoring in Telecomm Television Production.
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.