Today, social media is a powerful tool for marketing. Influencers, entrepreneurs, and businesses use social media platforms to promote ideas, products, and services in a way that attracts consumers on a personal level. Anyone with a phone or computer can create content that is instantly pushed out to millions of viewers. Consider this example:
Bob Buyer hires Chris Carpenter to build a set of custom bookshelves for his den. Chris does not disappoint and delivers and installs a flawless set of custom bookshelves. Chris knows that client referrals are a big deal. Chris takes a video on his phone of the finished product. Bob is standing in the doorway as Chris pans the video from one side of the room to the other and is now part of the footage. Chris also takes a picture of Bob in front of the bookshelves. Chris posts the video and the picture on his social media platforms and his website.
The caption for the video reads: "Walk-through video of custom bookshelves in client's den."
The caption for the photo reads: "Here is Bob with his custom bookshelves. Another satisfied customer."
Nothing wrong with that, right? Perhaps not, if Chris has the right to use Bob's image for commercial reasons. Did you know that Virginia provides a cause of action for an individual whose "name, portrait, or picture" is used "for advertising purposes or for the purposes of trade" if the publisher has not "first obtained the written consent of such person?"1 If your reading this and know that you've done something similar to Chris Carpenter, then you're going to want to continue reading.
What does it mean to use someone's name or likeness for an advertising purpose?
When a person's name or likeness appears in a publication (e.g., a social media post, newspaper ad, or brochure) and "taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service," then it is being used for an advertising purpose.2 This means that when you create content that includes another's name or likeness when trying to promote goods or services to prospective clients, you are potentially using that person's name or likeness for advertising purposes.
What does it mean to use someone's name or likeness for the purpose of trade?
Similar to advertising, "[i]n determining whether the use was 'for the purposes of trade,' courts are to consider whether the name was used to draw trade to an entity."3 This means that if you are including someone's name or likeness in your content for the purpose of attracting others into a business relationship with you, then you are using that person's name or likeness for the purpose of trade.
At this point, you are probably wondering, does this mean that everyone who appears in any of my promotional content needs to give me their written consent? Even the guy just walking around on the street in the background? Fortunately, it does not. There is one main exception to this law that content-creating business owners need to be aware of to determine whether they need to gain the written consent of an individual whose name or likeness appears in their content. This exception is known as the "Incidental Use Exception."4
What is the Incidental Use Exception?
This exception evaluates (1) "the main purpose and subject" of the content and (2) whether there is a "direct and substantial connection between the appearance of the [individual's] name or likeness" and the content's purpose.5 The content will be viewed in its entirety. If the inclusion of another's name or likeness is "sufficiently isolated, fleeting, or insignificant, the publishing party will not be liable."6 On the other hand, if the content references to or identifies the individual, making them the main subject of the work, or the content's main purpose requires including that person's name or likeness, then written consent is required to avoid liability.7 For these reasons, it is hard to imagine a scenario where including an individual's name in your promotional content will not require that person's written consent. Still, there will be many scenarios where the appearance of a person's likeness in your content will be merely incidental.
Here are some hypotheticals to assist in illustrating what is likely permissible and then what is likely impermissible. However, the best option is to ensure that your business is protected, which is why the best practice is to have consent for advertising purposes agreements with your customers, clients, students, employees, residents, subcontractors, and the list could go on.
Likely incidental use scenarios:
- An author takes out an advertisement in the local newspaper about an autobiography that he has recently written. The autobiography contains many photos from the author's past. The advertisement includes six of these different photos. One of the photos depicts the author and several of his college buddies and is labeled "Doe and his college buddies." The advertisement does not mention any of the other individuals in the picture by name, and the main purpose of the advertisement is to share about the author's autobiography. The use of the other individual's images is incidental to the advertisement as a whole because such use is not related to the advertisement's purpose, the autobiography.8
- A community college creates an online advertisement promoting the school's educational programs and extra-curricular opportunities. The advertisement is lengthy and details what the college has to offer. The college's advertising department selects photographs of students and faculty engaged in their studies and activities around the campus for the purpose of filing up space on the advertisement. No where in the advertisement are the individual's names listed, and the advertisement does not specifically reference to any of the individuals pictured. The individuals pictures are incidental to the main purpose of the advertisement, which is to provide information about the college's programs to prospective students.9
- A drone flies over a job site, taking a video of the constructing of a new subdivision. In the video, there happens to be the faces of the construction workers who are building the homes. The developer posted the video to his website and social media pages captioned "look at the awesome homes that my company is building." This video is an advertisement because it is used to promote the homes the developer is building with the goal of attracting future homeowners. The main purpose of the video is to promote the new homes, and the main subject of the video is the under construction homes themselves. The workers' faces do not have a direct and substantial connection to the purpose of the video and are not the main subjects of the video. Therefore, the appearance of the workers' likenesses is likely incidental.
- Bob's standing in the doorway during Chris Carpenter's video walkthrough of the den.
Likely not incidental use scenarios:
- Like Chris Carpenter's photograph of Bob Buyer, a builder takes a picture of one of his clients and his family in front of the new home that the builder just built for his client and posts it on social media, captioning it "Mr. Client and his family love their new home." The post is for advertising purposes because the builder hopes to attract future business by showing that his clients are happy with the homes he builds them. The main purpose of this advertisement is to show that the builder makes his clients happy, and the main subject of this advertisement is Mr. Client and his family. Here, there is a direct and substantial connection between the appearance of Mr. Client and his family and the purpose of the advertisement. Written consent is required before posting.
- A bar plans to host a DJ party one weekend. The social media manager for the bar goes online and finds images of attractive women at DJ parties at other clubs and then post the images to the bar's social media accounts, captioning the post "Saturday night DJ Cut & Paste and the most beautiful women in the city will be at our bar." The ad directly references the individuals whose likenesses are displayed and does so in a way that makes it appear those individuals are affiliated with the bar and will be at the event. The main purpose of the advertisement is no longer to inform the public about a particular event or DJ but is instead to increase traffic by convincing people that the most attractive women in the city will be at the bar. The main subjects of the post are the women pictured. The use of the women's likeness is directly and substantially connected to the main purpose of the advertising. Written consent is required before posting.10
Footnotes
1. VA. Code § 8.01-40 (2024) (it is worth noting that Virginia courts also look to New York courts for guidance when interpreting this provision, because New York has a similar provision and more developed law). This provision establishes what is generally called a right of publicity, one need not have celebrity status to receive such a right in Virginia. This provision is not to be confused with VA Code § 23.1-408.1, which came into effect on July 1, 2024 and provides unique name, image, and likeness compensation regulations for intercollegiate athletics.
2. Town & Country Props. v. Riggins, 249 Va. 387, 394–95 (1995) (quoting Beverley v Choices Women's Medical Center, Inc., 587 N.E.2d 275, 278 (N.Y. 1991); see also Wiest v. E-Fense, Inc., 356 F.Supp.2d 604, 610–11 (E.D. Va. 2005).
3. Goodweather v. Parekh, 2020 U.S. Dist. LEXIS 253268, 28 (E.D. Va. 2020).
4. Williams v. Newsweek, Inc., 63 F.Supp.2d 734, 737 (E.D. Va. 1999). There is another big exception to this law, the "Newsworthiness Exception." However, this exception focuses on if the name or likeness is published from a news source, and is part of a publication on a matter of public concern. Therefore, this exception will generally not be relevant to a content-creating business owners.
5. Id.; see also Lohan v. Perez, 924 F.Supp.2d 447, 455 (E.D.N.Y. 2013) (citing Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116, 119 (S.D.N.Y. 1991)) ("Whether a use falls within [the incidental use] exception to liability is determined by the role that the use of the plaintiff's name or likeness plays in the main purpose and subject of the work at issue.").
6. Geiger v. Abarca Family Inc., 2022 U.S. Dist. Lexis 167087, 8 (E.D. Va. 2022).
7. See Williams, 63 F.Supp.2d at 737; see also D'Andrea v. Rafla-Demetrious, 972 F. Supp. 154, 157 (E.D.N.Y. 1997).
8. This hypothetical is based off of Williams, 63 F.Supp.2d 734.
9. This hypothetical is based off of D'Andrea, 972 F. Supp. 154.
10. This hypothetical is based off of Geiger, 2022 U.S. Dist. LEXIS 167087.
Originally published by June 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.