The ubiquitous nature of the digital age allows anyone to use, adapt or duplicate content on the internet. But what do you do if that content belongs to you? Or even worse, what do you do if that content is you? This article explains the legal rights in a photo and how to respond if someone uses your photo without permission.

When Your Face is No Longer Yours

Jessica Buntrock, a skincare blogger with over 90,000 followers, recently discovered an image of herself on a flyer for Real Health in Sydney. Real Health used images of her face to promote their business with ‘before and after’ shots. Buntrock had never been to Real Health, but by using such photos, Real Health purported that Buntrock received their laser facial treatment. Real Health also photoshopped the images to make the side by side shots seem more drastic and impressive.

Your Legal Rights

There are several legal rights when it comes to photographs. Such rights belong to various people, including the:

  1. person in the photo;
  2. creator of the photo; and
  3. creator of any amendments to the photo.

Copyright in Australia is an automatic right that subsists (exists) in every original work. The creator of the work owns the copyright. Copyright grants the owner exclusive rights to use, adapt, publish, display or otherwise communicate that work to the public.

If you take a photo of yourself, edit and upload it to a social media platform, you own the copyright in that image. On the other hand, if a third party or agency photographs you, you may not own the copyright in the image. However, this does not mean that you do not have 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.

 

The ACL prohibiting misleading or deceptive conduct can relate to a brand or person using an image of you without your consent. Therefore, it is possible that, in using your picture, a person or business has misled or deceived the public by indicating that they are associated with you.

Further, section 29 explicitly states that it is misleading to make a false representation that goods or services have sponsorship, approval or affiliation with someone or something.

Proving Infringement and Breach

If you find yourself in a similar situation to that of 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 be able to claim copyright infringement. To establish copyright infringement, you need to show that there is a substantial reproduction of your work.

Breach of the ACL

The reasonable person test assesses whether the conduct was misleading or deceptive.

The test involves asking the following question: Would a reasonable person in the circumstances be misled or deceived into thinking that the person who posted the image of you was associated with you?

Remedies Available

If, like Jessica Buntrock, you come across an image of yourself promoting someone else’s brand and you establish 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; and/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, they 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 may have a case for copyright infringement or a breach of the ACL, going to court is costly, time-consuming and draining. Before considering court action, you should explore 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.
  • Lodge a formal complaint. If you want government backing, you can lodge a complaint with the ACCC or the Advertising Standards Board.
  • 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 easily 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.

Key Takeaways

If someone uses a photo of you without your consent, they may be infringing your copyright or breaching the ACL. You should first attempt to resolve the issue by contacting the infringing party. If that does not work, you can lodge a formal complaint or send them a cease and desist letter. If all else fails, you can go to court and seek remedies. However, it is important to keep in mind that going to court can be time-consuming and expensive.

If you have any questions or need assistance with exercising your rights against someone using your photo without permission, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Alexandra Shaw
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