Paul works in a restaurant, sometimes as a chef and sometimes as a bartender. David is the manager of that restaurant.
David has been taking pictures inside the restaurant including some showing Paul at work cooking and tending bar.
David posted those pictures on the company's website to promote the business.
Paul did not consent to having his picture used in this context. What are his legal rights?
The law varies greatly among U.S. states, most of which treat this as a common law tort action rather than having a statute on point.
But, the question tags California, and under California law, the relevant statute, which is called the "Right of Publicity Law" is California Civil Code § 3344 (rights of publicity after you are dead are governed by parallel California Civil Code § 3344.1).
This statute, under the relevant circumstances, gives the person whose photos were used commercially without their consent the right to economic damages (but not less than statutory damages of $750), disgorgement of profits from the commercial use of the image, attorney fees, and sometimes punitive damages. In the case in the question, the economic damages are unlikely to exceed the $750 amount unless the employer is a massive chain of restaurants.
There are arguments that could be made against liability in this case, so it wouldn't be a sure recovery, but it would have a decedent chance of success.
The goal of the statute in this context is to have the employer separately pay a small fee, perhaps a few hundred bucks, to employees who serve as models for advertisements in addition to being employees doing their ordinary work. Of course, if your occupation is to be a promotional model (my wife's line of work for many years), your consent is inferred from the circumstances.
The statute states, in the pertinent part:
(a) Any person who knowingly uses another's name . . . photograph, or likeness, in any manner, . . . for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, . . . shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
(b) As used in this section, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.
(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.
(2) If the photograph includes more than one person so identifiable,then the person or persons complaining of the use shall be represented as individuals rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.
(3) A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.
(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee's photograph or likeness.
(d) For purposes of this section, a use of a name, . . . photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).
(e) The use of a name, . . . photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, . . . photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).
(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person's name, . . . photograph, or likeness as prohibited by this section.
(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.
The most relevant language to this question is in bold.
