Stealing An Image Can Prove Costly
Ita Buttrose is one of the best known people in Australia. She’s a former Australian of the Year, she’s widely respected and her word carries a great deal of weight.
So when a company providing aged care used her image on its website without securing her permission, and without paying her normal fee of $75,000 for endorsing their product, it wasn’t surprising the matter ended up in court.
The Federal Court recently ruled in favour of Ita Buttrose. It heard her lawyers had first demanded $25,000 to settle the case. The company took its time deciding whether to pay up, and four months later the lawyers sent a second letter demanding $50,000.
The Court found the company had breached section 36 of the Copyright Act 1968 and sections 18 and 19 of Schedule 2 of the Competition and Consumer Act. The company was ordered to pay damages and legal costs, and say Buttrose had never endorsed their products.
The case raises the question of whether we can legally own our own image and what rights we have if someone uses our image to make money. It’s happened several times such as companies taking images of faces from social media sites such as Facebook to use in advertisements for their products.
In principle our face can’t be copyrighted, nor can our image. It is quite legal to take a photo of anyone in a public place such as a celebrity and sell it. The celebrity can’t own the image.
Similarly you are welcome to take a picture of the Sydney Opera House, but if you use it in a commercial venture such as advertising or company logo you will need permission of the Opera House managers. You may have to pay for commercial use of the image.
Similarly, if you use an image of a person in a commercial venture such as advertising or public promotion the law requires you to get their permission. You are associating that person with your commercial venture, you are making money from their image. A recent advertisement for a trendy Sydney cocktail bar said in the small print that by entering the bar “you agree to be photographed and filmed and grant (the international hotel chain) the right to use, publish and copyright your picture, likeness and/or name in videos and/or photos taken for use throughout the world in perpetuity throughout all media”.
It’s doubtful whether that would stand up legally for someone with a big public profile like Ita Buttrose. What if they hadn’t seen the notice? Even regular folk have the right to approve the use of their image for commercial purposes.