Spataro & Associates

Right of Privacy: Faces In A Crowd

Copyright © 1993 Stephen A. Spataro

The "right of privacy," also defined by law as the right "to be left alone" to live an ordinary private life without being subjected to unwarranted or undesired publicity usually falls into four categories. They are:

1. intentional intrusion or surveillance into one's private affairs
2. public disclosure of embarrassing private facts
3. placing someone in a false light
4. commercial misappropriation of someone's photograph, likeness, name, voice or signature.

This article will discuss the fourth category, as it applies to photographs.

California law prohibits the unauthorized commercial use of the photograph, likeness, name, voice, or signature of another and is embodied in California Civil Code §3344. Generally speaking, this law does not apply to certain specified uses which are not deemed "commercial" such as the use of someone's photograph or likeness in connection with a news, public affairs, or sports broadcast or account, or any political campaign. Certain conditions must be met regarding use of photographs for a complaint to be actionable. The photograph must show the person complaining as "readily identifiable," so that "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."

What if the photograph includes more than one identifiable person, such as a crowd at a sporting event, in a street or public building, at a theatrical production, in a glee club or a baseball team? The legal definition of photograph eliminates potential complaints from persons who are photographed and represented as "members of a definable group" but are not "represented" as individuals. (A person is considered a member of a definable group if he was represented in the photograph solely as a result of being present when the photograph was taken and was not singled out as an individual in any manner.)

The person complaining about the use of his photograph must also, generally speaking, show a "direct connection between the use and a commercial purpose." Thus, complaints not meeting the two conditions - singling out individuals and identifying the individuals as a member of a group, and the direct commercial use requirement -- will not meet requirements necessary to recover damages. Although these rules appear in the statute, Civil Code §3344, no case has yet been decided in California at the appellate level that clearly interprets the statute. However, it is the author's opinion that California Civil Code §3344 and California Case Law still provide that "faces in the crowd" have little or no chance of recovery for invasion of privacy unless they are singled out as an individual.

In conclusion, generally speaking, a photograph of a crowd at a sporting event or in a public street or building can be used if the individuals are represented as a group, if no one is singled out as an individual in any manner, and if the photo is used in a way so that no one individual is directly connected with the commercial sponsorship or with the paid advertising so as to constitute a use for which consent is required.

However, these issues often involve "questions of fact" and thus, even though a face in a crowd will have little or no chance of recovering in a lawsuit, such a lawsuit might have to be defended all the way through trial and is frequently costly. Right of privacy issues are often complicated and each case usually depends upon the particular photo use involved. Also, where a photograph is published in a way that exposes anyone to hatred, ridicule, or which causes someone to be shunned or avoided, or which injures someone in their occupation, the issues are emotional and the likelihood of getting sued increases. Uses of photographs and/or text involving matters like venereal diseases or AIDS, alcohol, sex, drugs, gangs, violence, or criminal activity increases the likelihood of getting sued. Take particular care when using any photograph in these sensitive areas. Use common sense to help prevent yourself from getting sued. Remember, even though you may eventually prevail in a lawsuit for invasion of privacy, the cost of defense and time consuming drain of litigation is a high price to pay.