[This article unintentionally picks back up on a more theoretical LawSci Forum post from spring 2017 by Travis Waller.]
A few weeks ago I got all “fired up” about copyright. [To figure out why that’s a terrible #dadjoke, you’ll have to read that post here.] I honestly thought I’d have time to cool down again (fire pun #2!), and let the smoke clear (TRIFECTA?!!) before getting so incensed again (ok, I’ll stop now).
Then, I opened my LinkedIn feed early last week.
Staring back was a side by side comparison of my current profile pic–a quirky, raised-eyebrow homage to the Uncle-Sam-finger-pointing “I Want You” posters of yesteryear–and the new website head-shot we had just chosen for my law firm’s website refresh–a still-relaxed but decidedly more traditional affair. [Click my name above to see my current LinkedIn pic.]
In and of itself, the juxtaposition was not terribly unpleasant. After all, these were both pictures that I had personally selected from dozens in each photo-shoot, and I was the one who chose to make the older photo my profile pic. It was the text accompanying the pictures that really got me lit up. Taking the high road here, I won’t identify the author (the photographer) or reprint the text verbatim. But the went something like,
“This* guy [*me, here] made a terrible mistake ever using the older pic. It might be appropriate for actors and comedians, but not serious lawyers. If you need help figuring out how to look like a competent professional on LinkedIn call me [the photographer] for an appointment.”
Needless to say, insulting. After all, I did enjoy a career as a professional actor pre-law school, and the picture was entirely appropriate for my purposes there.
But even more than insulting, the photographer’s LinkedIn post almost certainly illegal, for 2 reasons.
#1 – Copyright law says you don’t get to use other people’s pictures without their permission.
Copyright scholars of any sophistication know that the law gives the creator of an original work of authorship, among others, the right to, well, make copies. Simple, but powerful nonetheless.
An author like, say, a budding amateur photographer capturing a snarky Uncle Sam poster-inspired head-shot has as much right to control the duplication of his own images as an arguably-overpriced full time corporate head-shot “artist.” Without the original author’s permission, a copy like the one in the side-by-side comparison post violates the exclusive right to “reproduce” the work.
Now, because apparently it’s Fair Use week this week, I’ll address that elephant in the room. Our friends at the US Copyright Office note that the analysis of whether a use counts as “fair” is not generally a straightforward process. Whether a secondary user of copyrighted content falls into the fair use exception turns on a combination of four factors. But, they did describe a case where “the use of [copyrighted] celebrity images by a gossip website was not fair.”
While I’m not a celebrity by many definitions, the reasoning should hold even more for less-famous folks. You need permission to use an image that you don’t own, especially for business purposes. Which brings me to my next legal gripe…
(Admittedly, that header link is mainly to sneak in a YouTube clip from one of my favorite shows. But still relevant!)
The second reason why this corporate photographer’s post is almost certainly illegal is that she was using my likeness for her financial gain, again without my permission.
Here in Minnesota, our common law recognizes a right to publicity. Way back in ‘95, shortly before we called him Governor The Body, pro-wrestler Jesse Ventura went to federal court because, he alleged, WWF president Vince McMahon owed him money. Turns out Ventura was giving color commentary on some wrestling matches that McMahon then sold on videotape (remember those?); Ventura argued that hadn’t been part of the negotiated arrangement, so he wanted backpay of a sort. [This is all super true, and a super surreal case to read. Ventura v. Titan Sports, Inc., 65 F.3d 725, 730 (8th Cir. 1995).]
The estate representative for another Minnesota celebrity, the late Purple One themself (i.e., Prince), played a role in getting this “right to publicity” extended posthumously. So, now you can’t misappropriate someone’s likeness for financial gain after their death, either. [This is really fun research tonight. Paisley Park Enterprises, Inc. v. Boxill, No. 17-CV-1212 (WMW/TNL), 2017 WL 4857945, at *6 (D. Minn. Oct. 26, 2017).]
The upshot is that I have a common law right to tell the new headshot photographer to knock it off, right away. And that’s just what we did, in a strongly-worded email. Not quite as imaginative as some recent cease & desist messages we’ve heard about, but it did the trick.
Pro-tip #1: If you’re going to defame a new lawyer by stealing his old headshot and misappropriating his identity to promote your photography business, probably best not to have connected with him recently so he sees the post in his LinkedIn feed.
Pro-tip #2: SO many potential copyright and individual rights issues can be cleared up with a simple phone call or email asking permission. I would gladly have discussed ahead of time the use of the old picture. I would even have suggested appropriate wording for the post that didn’t disparage my previous photographer or conspicuously omit that the old photo was for a different career. Now, though, I’m not inclined to help out at all, and will be diligently checking back to police her use of my new photos.
Pro-tip #3: If you encounter a situation like this, and can’t make lemons out of lemonade by blogging, call a knowledgeable attorney (like me!) to draft a killer C&D.
I got really heated when some lady violated copyright and right to publicity laws by taking my picture and writing less-than-flattering things about it on LinkedIn. You can’t reproduce other people’s copyrighted works without permission or fair use exception. And you can’t use other people’s likeness for your own financial gain without permission. Don’t defame a lawyer with lots of time on his hands – it’ll end badly for you.
I wrote this to blow off steam and make some terrible puns along the way, but I also really enjoy talking copyright with people. Do you have a question or comment? Contact me here.