However, it couldn’t snap a photo of that same politician or gangster reading the newspaper at a Starbucks and plaster it on ads saying, ‘look who reads our newspaper.’“The main thing is the Privacy Act and the general rule that prohibits the commercial exploitation of a person’s name or likeness without their consent,” said Vesely.Section 3 of the Privacy Act covers the unauthorized use of a person’s name or image for a commercial purpose.“This is what prevents you from taking Wayne Gretzy’s picture or Michael Jordan’s picture and putting it on a cereal box without their permission,” said Vesely. The opening of Section 3, covering the “unauthorized use of name or portrait of another” reads: (2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.If a not-so-well-meaning colleague posts it on Facebook, you could be out of luck – at least in taking your colleague to court.“For example, let’s say my wife takes a photo of me and someone uses it to sell something,” said Vesely.“I might have a legal action under privacy, my wife would have an action under copyright.”Although there are differences between US and Canadian laws on this issue, in both countries there is the potential to sue for punitive damages.
Copyright rests with the person who took the photo, not the subject of the photo.
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Bloudoff said his company blocked the image from appearing on Plentyof in accordance with US copyright legislation, the Digital Millennium Copyright Act, after being contacted by the attorney for the Burks family.
Bloudoff suggested that since Plentyof Fish removed the photo when it was given notice by the Burks’ attorney that it is safeguarded from liability under US legislation, which provides a ‘Safe Harbor’ provision if an online service provider isn’t aware of the copyright infringement and removes the infringing material once it receives notice from the copyright owner or the owner’s agent.“ This case should not have been filed, as the DMCA’s Safe Harbor provisions protect service providers from lawsuits such as this,” wrote Bloudoff.