In Short
- If a business uses your image without consent, it may infringe copyright or breach Australian Consumer Law by misleading consumers.
- You can take action by requesting removal, filing a complaint, or sending a cease and desist letter before considering legal action.
- Court remedies include injunctions, damages, and compensation, but they can be costly and time-consuming.
Tips for Businesses
If your image is used without permission, start by contacting the business or using social media complaint procedures. If that fails, a cease and desist letter may be effective. Legal options, such as copyright infringement or misleading conduct claims, are available, but resolving the issue outside of court is usually quicker and less expensive.
Businesses looking for a quick and cheap way to promote their products often resort to stealing images from the internet rather than using properly licensed photos with consenting models. With the vast number of images available online, it’s easy for companies to take a photo from social media and use it in advertising – without permission or payment.
Take the case of Jessica Buntrock, a skincare blogger with over 90,000 followers. She recently discovered that a Sydney-based business, Real Health, had used her image without consent in a promotional flyer. The business falsely implied that she had undergone its laser facial treatment by featuring doctored ‘before and after’ photos. Not only had Buntrock never visited Real Health, but the company had also photoshopped the images to exaggerate the transformation.
Knowing your legal options can be challenging if you find yourself in a similar situation. Can you force the business to take the image down? Do you have any legal remedies? This article explores the protections available under copyright and consumer law.
Your Legal Rights
There are several legal rights regarding photographs. Such rights belong to various individuals, including the following:
- person in the photo;
- creator of the photo; and
- creator of any amendments to the photo.
Copyright in Australia is an automatic right that exists in every original work. The creator of the work owns the copyright, which grants the owner exclusive rights to:
- use;
- adapt;
- publish;
- display; or
- otherwise communicate that work in public places.
If you take a photo of yourself, edit it, and upload it to a social media site, you own the copyright to that image. If another business uses it without your permission, that is considered copyright infringement. Conversely, if a third party or agency photographs you, you may not own the copyright to the image. However, this does not mean you lack any rights.
The Australian Consumer Law (ACL)
The ACL is designed to protect consumers and is enforced by the Australian Competition and Consumer Commission (ACCC). In particular, the ACL prohibits misleading or deceptive conduct in the following ways:
| Section 18 | A person must not engage in conduct that is misleading or deceptive or likely to mislead or deceive in a commercial sense. |
| Section 29 | A person must not make false or misleading representations about goods or services. |
Further, section 29 explicitly states that it is misleading to falsely represent that goods or services have sponsorship, approval, or affiliation with an individual or entity. Additionally, there are other ways in which the image may amount to misleading and deceptive conduct. For instance, if a beauty company uses an image of you and claims that you used their treatment for improved skin. If you have never visited their business or used their products, they mislead their customers into believing they can achieve similar results.
Continue reading this article below the formProving Infringement and Breach
If you find yourself in a similar situation to Jessica Buntrock, you may be able to prove copyright infringement, breach of the ACL, or both.
Copyright Infringement
If you create and upload an image, you may have grounds to claim copyright infringement. To establish copyright infringement, you need to demonstrate that there is a substantial reproduction of your work. A business reproducing your photograph would likely suffice in this case.
Breach of the ACL
The reasonable person test evaluates whether the conduct was misleading or deceptive. It involves asking this question: “Would a reasonable person in the circumstances be misled or deceived into thinking that the individual who posted the image of you was associated with you?”
Remedies Available
If, like Jessica Buntrock, you find an image of yourself promoting another person’s brand, and you identify copyright infringement or a breach of the ACL, there are several remedies available to you.
| Injunction | An injunction restrains the infringing party from continuing the infringing conduct. For example, an injunction may require the infringing party to take down your photo. |
| Damages | Damages compensate the aggrieved party (you) for any loss the infringement causes. For example, this could be: • loss of licence fee if you are in the business of typically licensing your images; or • loss of reputation, quantified and valued by the court. |
| Additional Damages | If the court determines that compensatory damages are not enough to cover the copyright owner’s loss, it can also award additional damages. |
| Account of Profits | This focuses on ensuring the copyright owner receives a remedy for the monetary gain made by the infringing party, to which the owner should have been entitled. |
| A Public Apology | Sometimes, where reputation is at the heart of the issue, a public apology is the most appropriate remedy. |
| Compensation Orders | The court has the power to grant orders against the infringing party to compensate any injury that the aggrieved party has, or is likely to, suffer. |
Before Going To Court
Although you might have a case for copyright infringement or a breach of the ACL, pursuing court action can be costly, time-consuming, and exhausting. Before contemplating court, consider exploring the following practical steps:
- Use the avenues available to you. Most social media platforms have a complaint procedure. This could result in the infringing party being forced to take down your image. Be sure to review the relevant privacy policies of your social media platform.
- Lodge a formal complaint. You can lodge a complaint with the ACCC or the Advertising Standards Board if you want government backing.
- Contact the infringing party yourself. Sometimes, people are unaware of the laws around copyright and misleading or deceptive conduct. They may have innocently used your photo. If this is the case, reaching out yourself and asking them to remove the image may quickly solve your problems.
- Send a cease and desist letter. A cease and desist letter is a relatively easy and low-cost option to outline your rights to the infringing party and demand that they cease and desist from using your photo. It is usually a good idea to seek the advice of a lawyer when exploring this step.
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Other Alternatives
Passing Off
Making a claim under common law for passing off may also be possible. The elements required for a claim to be passed off are that there is some sufficient reputation on the person’s part and that a misrepresentation by another party has caused or is likely to cause damage to the individual. Despite this, as reputation is quite a significant element of claim, it may be limited use for the “average person”.
Defamation
Defamation law may also apply when a photograph injures a person’s image. This can happen if the photograph includes a damaging caption or appears in a negative context. The test for whether a photograph is defamatory is whether it:
- lowers or harms the person’s reputation;
- opens them up to ridicule; or
- causes others to shun and avoid them.
An example is Andrew Ettinghausen, who successfully claimed defamation against HQ magazine for publishing nude photographs of him without his consent. The court found that the photograph led to his ridicule, as it exposed his genitals to a broad audience.
Key Takeaways
If someone uses a photo of you without your consent, they may infringe on your copyright or breach the ACL. You could first try to resolve the issue by contacting the infringing party. If that doesn’t work, you can lodge a formal complaint or send them a cease and desist letter. If all else fails, you can proceed to court and seek remedies. However, it is essential to remember that going to court can often be time-consuming and expensive.
If you have any queries, our experienced IP lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
If you take the image yourself, you own the image as the copyright holder. Therefore, you have copyright law protections.
You can send them a cease and desist letter, letting them know that you own the image. If this does not work, you can take further steps, such as court action.
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