September 5, 2017

Jamie Dornan is pictured wearing your brand’s headphones on Twitter. Naturally, you want to make use of the images in your marketing materials but you don’t want to contact him and potentially incur a usage fee. Can you use the image anyway and how safe is it?

Answering this question requires a mastery of several areas of law and knowledge of the advertising regulations. An individual assessment has to be made for each person and each situation – there are no black and white rules, just shades of grey.

Privacy first

Assuming that you aren’t going to request Jamie’s permission, the first concern is privacy. The picture might have been shared on social media but you need to make your own assessment as to whether he can nevertheless claim an expectation of privacy. What would a reasonable person of ordinary sensibilities feel in the same position and faced with the same publicity? Where is he? What is he doing? What might be the expectation of other people in the background of the shot?

Your responsibilities

The CAP code (at 6.1) compels marketers to obtain written permission before referring to or portraying a member of the public or his or her identifiable possessions. It also urges caution where you imply that there is personal approval of the advertised product, noting that it could result in a false endorsement claim.

It is often said that the UK (unlike the US) does not have image rights, so celebrities have less ability to prevent their name or image being used in marketing communications. In legal terms, there is not much difference. You want to share the images because you would like to how the connection with the actor, to suggest endorsement of your product. But would that be a true representation? Does wearing headphones mean he likes them? You need more information – is he regularly seen wearing them? Is this a one-off? Has he shared images himself where he has the headphones on? To accurately assess the risk, you also need to know about his own marketing activities – does he endorse other products?

Channel matters

Assuming you are comfortable with the answers to all these questions, you also need to consider how you want to share the image. Re-tweeting will not cause you any copyright issues but if you use a different platform, the image needs to be licensed from the photographer. You would not have a ‘fair dealing’ excuse and you should be aware that there is a growth in agencies collecting fees for use of social media images without licence.

The last word: reputation 

Finally, there is reputation to consider. The PR advantage of connecting a celebrity with your product can quickly be undone if a grievance is raised. Savings on fees could be cancelled out – or worse – committed to dealing with a legal complaint. It’s never an easy call.