Defining Image and Identity #
- Definition of Personal Image: Legally, an image belongs to humans, not objects. Objects that happen to look like faces (pareidolia) or mascots do not have "image rights."
- Identifiability Beyond the Face: While the face is the primary identifier, an image can still be legally protected if a person is recognizable via specific clothing, body shape, unique tattoos, or characteristic postures.
- Anonymity: Shots taken from behind or photos where the person cannot be identified are generally safe to use without explicit consent.
Obtaining and Proving Consent #
- The Hierarchy of Proof: When securing consent for image use, the speaker suggests a "ladder" of reliability:
- Verbal agreement (weakest/hardest to prove).
- Messenger/Social media chat.
- Email.
- Written note/statement.
- Formal contract (strongest/recommended).
- Implied Consent: Participation in events often includes consent via the event’s Terms and Conditions (regulations signed upon registration).
- Financial Proof: A bank transfer or proof of payment for a modeling/speaking service can also serve as evidence of consent.
Exceptions to Consent Requirements #
- Public Figures in a Professional Context: Consent is generally not needed when filming or photographing a well-known person performing their public/professional duties (e.g., a singer on stage or a speaker at a conference).
- Private vs. Public Life: This exception does not apply to public figures in private settings (e.g., eating at a restaurant or on vacation).
- Mass Events and Crowds: Consent is not required when a person is merely a "detail of a larger whole" (crowds, public gatherings, landscapes).
- Individual Identifiability in Crowds: If a specific person (even a celebrity) is the clear focus of a photo taken in a crowd, the "larger whole" exception may not apply.
Managing a Lack of Consent #
- Post-Production Solutions: If consent is missing or revoked, individuals can be removed, cropped out, or obscured (e.g., placing a graphic or text over the face).
- Contractual Protections: To prevent issues where a person changes their mind later, contracts should include "contractual penalties" (fines) for withdrawing consent after production has occurred.
Risks and Legal Precedents #
- Commercial Exploitation: Using someone’s image for marketing or merchandise (e.g., magnets, advertisements) without specific permission is a high-risk legal violation.
- Historical and Digital Context: Linking to unauthorized content (e.g., leaked photos) can still carry legal risks, and historical violations (like early Playboy photos) remain part of the legal discourse on image rights.
- The "Meme" Trap: Many famous meme subjects are private citizens who never consented to global fame; using their images—especially for profit—can be legally and ethically problematic.
Summary #
The presentation outlines the legal framework for using personal images in the age of social media. It emphasizes that while public figures and crowds offer certain exemptions, the safest route is always through documented consent—ideally via a formal contract. The speaker warns against the "myth of numbers" (the idea that a certain number of people in a shot automatically makes it legal) and highlights that the context of the photo—whether the person is a detail or the primary subject—is the deciding factor. Finally, he provides practical advice on how to handle situations where consent is withdrawn, suggesting the use of penalties in contracts and creative editing to anonymize subjects.
last updated: