| Patent, Trademark, Copyright Prosecution & Related Litigation |
 |  |  |  |  |  |
KUNZLER & McKENZIE
INTELLECTUAL PROPERTY LAW
INTELLECTUAL PROPERTY LAW
(801) 326-4554
| Salt Lake City patent attorney, Tyler R. Goucher, provides intellectual property attorney services including patent application, patent filing, guidance on the patent application process, trademark applications trademark name searches and copyright services to clients in Utah with clients located from Ogden to Provo including Layton and Park City. As a patent Lawyer licensed with the United States patent and Trademark Office, Mr. Goucher is also available to assist inventors with their inventions throughout the United States. |
Tyler R. Goucher
Salt Lake City Patent Attorney
Salt Lake City Patent Attorney
Call For A Free Consultation
Disclaimer: Nothing in this website is intended to be legal advice, and no attorney-client relationship can be established by viewing this
website or by sending us an e-mail. Legal issues are highly factual in nature and advice given must relate to the specific facts of a case.
Therefore, we recommend that you seek an attorney qualified to render an opinion on your situation.
website or by sending us an e-mail. Legal issues are highly factual in nature and advice given must relate to the specific facts of a case.
Therefore, we recommend that you seek an attorney qualified to render an opinion on your situation.
| Home Attorney Bio Patent, Trademark and Copyright Answers Free Legal Forms Contact Us Online Consultation |
| Tyler R. Goucher Patent Lawyer 8 East Broadway, Ste 600 Salt Lake City, Utah 84111 Phone: (801) 326-4554 Fax: (866) 285-2421 tyler@kmiplaw.com |
Right to Publicity
Subject: Privacy and photography
Question: Can an amateur photographer post pictures of anonymous people on the web? Do people have a
copyright in their own faces? Is there some other reason this may be unlawful?
Answer: The problem you may have is not necessarily whether or not the individuals have a copyright for their faces,
but rather whether they are protected under some other privacy related law. I think you may find the answer to your
question in the Restatement of the Law, Second, Torts, § 652. This section deals with the common law “Right to
Publicity.” About half the states recognize some form of a “Right to Publicity,” although not all of these states call it
this. Bellow you will find the section of the Restatement of Torts which might apply to your situation.
§ 652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for
invasion of his privacy.
Comments:
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his
own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or
to others. Although the protection of his personal feelings against mental distress is an important factor leading to a
recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive
license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the
plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose.
Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the
defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a
commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states
have, however, limited the liability to commercial uses of the name or likeness.
As far as whether individuals have a “copyright in their own faces.” The answer is probably no. Copyright law extends
protection to copyright owners for original expressions of an idea. The USPTO defines Copyright as follows:
"Copyright: protect works of authorship, such as writings, music, and works of art that have been tangibly
expressed…. Copyright is a form of protection provided to the authors of “original works of authorship” including
literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The copyright
protects the form of expression rather than the subject matter of the writing. For example, a description of a machine
could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from
writing a description of their own or from making and using the machine."
Therefore, it is the expression of the idea which is protected. More specifically, it is the way that you have laid out the
elements of the photograph that is protected. Because the individuals you have photographed were not involved in
producing the photograph, they likely would not be entitled to a copyright. Additionally, one of the basic tenants of
copyright law is that an individual is only entitled to a copyright for an original work. This means that the author,
photographer, sculptor, etc., must have been the one who originally created the work. The individuals whom you have
photographed cannot claim that they created the photograph.
Subject: Privacy and photography
Question: Can an amateur photographer post pictures of anonymous people on the web? Do people have a
copyright in their own faces? Is there some other reason this may be unlawful?
Answer: The problem you may have is not necessarily whether or not the individuals have a copyright for their faces,
but rather whether they are protected under some other privacy related law. I think you may find the answer to your
question in the Restatement of the Law, Second, Torts, § 652. This section deals with the common law “Right to
Publicity.” About half the states recognize some form of a “Right to Publicity,” although not all of these states call it
this. Bellow you will find the section of the Restatement of Torts which might apply to your situation.
§ 652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for
invasion of his privacy.
Comments:
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his
own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or
to others. Although the protection of his personal feelings against mental distress is an important factor leading to a
recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive
license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the
plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose.
Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the
defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a
commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states
have, however, limited the liability to commercial uses of the name or likeness.
As far as whether individuals have a “copyright in their own faces.” The answer is probably no. Copyright law extends
protection to copyright owners for original expressions of an idea. The USPTO defines Copyright as follows:
"Copyright: protect works of authorship, such as writings, music, and works of art that have been tangibly
expressed…. Copyright is a form of protection provided to the authors of “original works of authorship” including
literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The copyright
protects the form of expression rather than the subject matter of the writing. For example, a description of a machine
could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from
writing a description of their own or from making and using the machine."
Therefore, it is the expression of the idea which is protected. More specifically, it is the way that you have laid out the
elements of the photograph that is protected. Because the individuals you have photographed were not involved in
producing the photograph, they likely would not be entitled to a copyright. Additionally, one of the basic tenants of
copyright law is that an individual is only entitled to a copyright for an original work. This means that the author,
photographer, sculptor, etc., must have been the one who originally created the work. The individuals whom you have
photographed cannot claim that they created the photograph.