Use of Employees’ Names and Pictures in Company Marketing Materials—Is It Legal?
It is common today for businesses to feature the names and pictures of their employees in trade and advertising materials, including on their business and recruitment websites and in social media marketing. While companies may assume this is harmless, the use of employees’ names and pictures for these purposes without their written consent could result in criminal and civil liability under New York law.
Under Section 50 of the New York Civil Rights Law, the unauthorized use of a person’s name, portrait or picture for trade or advertising purposes constitutes a criminal misdemeanor. Under Section 51 of the Civil Rights Law, an aggrieved individual may bring an equitable action to restrain such use and seek an award of actual as well as exemplary damages. The statute creates no exceptions, nor have the courts recognized any “special” circumstances, in cases involving the employer-employee relationship.
The seminal case in this area is Caesar v. Chemical Bank, 496 N.Y.S.2d 418 (1985). There, defendant Chemical Bank photographed Plaintiff and 38 other bank employees who worked in its Electronic Costumer Services department. The photographs were later used in brochures and for display purposes at a trade fair and at various bank branches. Plaintiff, on behalf of himself and the other bank employees, commenced a class action against the bank under Section 51 of the Civil Rights Law. The bank argued that no violation of the statute occurred since all the employees consented orally to the use of their photographs, although the bank acknowledged that it had not obtained the employees’ written consent. The New York Court of Appeals held that absent such written consent, the bank’s use of the photographs constituted an invasion of the employees’ privacy rights in violation of Section 51. The employees’ oral consent, the Court held, might be relevant for purposes of mitigation of damages but did not constitute a complete defense to the Section 51 claims. See also Lomax v. New Broadcasting Co., 18 A.D.2d 229 (1st Dep’t 1963); Greenaway v. Corcoran Group, 906 N.Y.S.2d 779 (2nd Dep’t 2010).
Although there do not appear to be any reported cases addressing the unauthorized use of an employee’s name or image on a company’s website or in social media as a potential violation of the Civil Rights Law, the New York courts have applied the statute to claims arising in related contexts. See, e.g., Molina v Phoenix Sound, Inc., 747 N.Y.S.2d 227 (1st Dep’t 2002) (entertainer stated a claim under Civil Rights Law with respect to nightclub’s unauthorized use of her name and image on its website). Since the New York courts do not recognize any “special” exception based upon the employer-employee relationship, it is at least possible that the common practice today of including employees’ names and photos on such media could be actionable.
As a precaution, employers that have not already done so may wish to consider obtaining valid and enforceable “consent” releases from their employees before using their names and photos in any trade or advertising materials, including business and recruitment websites and social media marketing. For employers with offices outside of New York, it also would be advisable to consider the laws respecting the right of privacy/right of publicity in those states, as they may impose different (and perhaps greater) legal requirements than New York.