Privacy (or lack of) in Photographs
What are the means by which you can protect the use of your image?
At present, there is no right to privacy in Australia in relation to the publication of photographs. The Privacy Act 1988 regulates the use of personal information by businesses and the government. The effect of this lack of right to privacy is that, unless the unauthorised use falls within one of the various heads of existing law as set out below, a person or company may well be able to use your image without your permission.
Generally, a person whose image appears in a photograph will not own any copyright in that photograph. The copyright (and hence the right to grant use of the photograph) usually rests with the photographer. You may be able to ask the photographer to deny use of your photograph in a way that you do not like. However, the photographer will generally not be under any legal obligation to do so. If you commission the photograph for a private purpose, however, such as a wedding or family portrait, you will own copyright in the image and, therefore, may prevent any further use of the photograph.
If someone has used a photograph or image of you in an unfavourable way it may be possible to bring an action in defamation seeking an injunction and damages. The questions that must be asked are (1) has the image been used in a way that identifies you? (2) would it lower your reputation in the community or with people who you would normally come into contact with? and (3) has it been ‘published’? If the answer to each of these is ‘yes’, it is likely that you may be able to bring an action in defamation.
It is becoming more common for celebrities to protect their image by registering it as a trade mark. Celebrities such as Kieren Perkins, formula one driver Michael Schumacher and Elvis Presley have done this. However, this option is generally only taken by people who have marketed their image extensively. The reasons for this are due to the associated costs and, if you do not need to protect your image in a commercial environment, you probably don’t need to register it as a trade mark.
Misleading or Deceptive Conduct and Passing Off
It is possible to bring an action under the federal Trade Practices Act (if the unauthorized use has been by a corporation), one of the state Fair Trading Acts (if the unauthorized use has been by an individual), or under the common law of passing off if the infringing use of the photograph has misled the public into believing that there is a commercial relationship between yourself (the subject of the image) and the product or service that the image is endorsing. In order to bring an action, there is usually a requirement that the infringement has occurred in a commercial context and that there is a significant commercial value in using your photograph. Hence, in order to protect your image by the invoking the Trade Practices Act, Fair Trading Act or passing off, your image must have some commercial benefit. This means that to succeed in such an action, it will help if you are a well known as an expert in some area or a famous celebrity.
Seek legal advice if there has been an unauthorized use of your image. It is more likely that you will be able to prevent this unauthorized use if it has commercially benefited the party who has used the image or has had the effect of lowering your reputation amongst the general public.
Liz Kazi is a former law student volunteer researcher at the Arts Law Centre.