If someone has used your photo without permission, you can seek redress under copyright, defamation and Australian consumer law. Although we have already unpacked defamation in a previous article, we focus below on other areas of law that can protect you as well as how to respond if someone has used your photo without permission.

Who Owns Copyright in Your Photo?

The Copyright Act 1968 (Cth) states that a person who takes a photograph is the author of the image. Subject to an assignment of ownership, you do not own the copyright in the photo even if you are the subject. We will now outline two recent examples which address this issue.

STA Travel

Last year, STA Travel uploaded and reproduced a photo of Ms Anthea Jirgen holidaying in Greece for their commercial use. Her ex-boyfriend, Mr Scott Ennever, had taken the picture, and as such, was the automatic author and copyright owner of the image he captured. Consequently, exclusive rights to use the image attached to him.

As STA Travel did not obtain Mr Ennever’s permission to use his photo, the pair (Ms Jirgen and Mr Ennever) pursued STA Travel for compensation. When STA Travel were notified about using a photograph without consent, they responded appropriately by taking down the photo from all various outlets.

Lorna Jane

Ms Lydia Jahnke pursued legal action against Lorna Jane, an Australian activewear company. In 2014, Ms Jahnke was photographed wearing a Lorna Jane top on the peak of Mt Mee, Queensland. Ms Jahnke uploaded the photo onto her Instagram profile. Lorna Jane reposted the photo on Instagram and later used the photo on a range of their shirts. The recurring issue was the recycling of a photo for commercial purposes without permission, and that Lorna Jane was not the owner of the photograph.

What Legal Avenues Are Available?

Copyright Infringement

As previously stated, the creator of a photograph will typically own the copyright. As such, you can only pursue legal action for copyright where you were legally assigned rights to the photo.

Copyright infringement occurs when a person or business, uses, adapts or reproduces a work that is subject to copyright and they do this without:

  • Permission;
  • Ownership of the work; or
  • A relevant defence.

Lastly, the copying must be a “substantial part” of the work. The courts when determining what is substantial consider the quality and quantity of the work copied. It is important that the work that is recognisable is the essential part of the whole piece.

The case for infringement is strengthened when your infringer uses your image for commercial purposes. Merely sharing a photo and attributing it to the author might not be enough to establish an infringement of copyright laws.

Misleading and Deceptive Conduct

The Australian Consumer Law (Cth) (ACL) prohibits the unauthorised use of photos where they mislead or deceive the public. This is a subjective question that the courts will assess on a case-by-case basis. Where a product or brand is associated with a desirable personality to make it appear more pleasing without permission, this may be sufficient ground to establish misleading and deceptive conduct. You can read more about character merchandising in our article, ‘Brand Management Lessons From the Duff Beer Case’.

Passing Off

The law of passing off and misleading and deceptive conduct under the ACL are quite similar. The difference is that passing off sits under the common law tort framework. It is designed to protect a business against a third party imitating their brand. Accordingly, a business bringing an action must:

  • Have a reputation; and
  • Show that there was a misrepresentation; and
  • Show that they suffered damage.

How Should I Respond?

Contact Your Infringer

The first point of action is to put your offender on notice that they are using a photo of you and ask for its removal (as outlined in the STA Travel example).

Understand the Platform You Have Posted Your Image On

It is important that you understand the terms and conditions of the website you posted your image on and who used your image. For example, upon signing up to Instagram and Facebook, you grant these social media platforms a non-exclusive licence which allows them to use your content that you have posted on or through their service.

Seek Legal Advice

As noted above, there are certain courses of action you can take when someone has used your photograph without your permission. In taking action, you will need to seek advice and ensure that you can establish the relevant legal principles.

Key Takeaways

Businesses need to be mindful when promoting photos and seek written clearances from the people in the photograph as well as the copyright owner. If you have noticed that a business has used a photograph of you without your permission, you might have difficulty in establishing ownership of the photo. However, more often than not, businesses will be happy to remove photos to retain satisfied customers and maintain their business profile.

Questions? Get in touch with our IP lawyers on 1300 544 755.

Esther Mistarz

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