"Building brand value is a long-term effort based on trust so brand holders should be familiar with the principles of good marketing practice, such as guidelines regarding the use of someone’s image. Consent is always required when a person is identifiable”, reminds our lawyer Maria Puronvarsi, specializing in brand rights and marketing law.

Marketing utilizing images of persons on social media platforms has significantly increased. The practice has shown that the rules regarding the use of someone’s image are not always given sufficient attention, especially in influencer marketing. This issue has also caught the attention of the Finnish Central Chamber of Commerce's Board of Business Practice, which issued a recommendation (in Finnish) at the beginning of this year regarding the use of personal images in marketing.

In marketing, images of identifiable persons are sometimes used in violation of good business practices and the ICC Marketing Code of the International Chamber of Commerce. The criteria for using images are still not fully known to marketers. Marketing rules are independent of the media platform or channel used for marketing. The same rules apply to both influencer marketing on social media platforms and, for example, personal images on product packaging.

It's important to note that when interpreting good business practices and marketing rules, the concept of marketing should always be understood in a broad sense. Marketing is involved when the primary purpose of communication is to promote sales or influence consumer behavior.

Identifiable individuals' images cannot be used without consent

According to Article 14 of the ICC Marketing Code, a person's image cannot be used in marketing without a consent. When any person is identifiable in a photograph, video, painting, drawing, or caricature, their consent must be obtained.

The assessment of identifiability is always done on a case-by-case basis. It is not relevant how wide a group recognizes the person in the image. The crucial factor is that the person is identifiable, not just by the person him/herself, but by someone else, such as those in the person's close circle.

Consent is also required when a person is identifiable by name, voice, or any other element. Using a person's reputation for commercial purposes also requires the person's consent. If the image is a stock photo, both the photographer and the person appearing in the photo must give consent for commercial use. The marketer is responsible even when artificial intelligence is used in creating marketing material.

Privacy protection covers both private individuals and persons known to the public

Privacy protection covers all individuals regardless of country and nationality, including both persons known to the public and private individuals, including children. The use of the image of a person under 18 years of age requires the consent of a guardian, and especially the use of the image of a young child should be limited in time.

The length of privacy protection after a person's death is at most the length of copyright protection, i.e. 70 years from the end of the year of the person's death. The heirs can give consent to the use of the image.

What about photos taken in public places?

When a photo is taken in a public place, and no individual is prominently and distinctly featured in the image, the commercial use of the photo generally does not require the consent of the individuals in the picture.

However, caution is advised even in using personal images taken in public places. Individuals may not wish to be associated with the marketing of a specific brand or product.

A written agreement is recommended

It is advisable for marketers and individuals featured in the image to enter into a written agreement regarding the use of the person's image in marketing. A written agreement is the most effective way to prevent unclear situations and future disputes. It secures the positions of both the marketer and the person in the image when the contractual relationship is clear for both parties.

The agreement regarding image use includes details such as which image and for what purpose consent is given, in which communication channels and on which platforms and geographical areas the image can be used, until when the consent is valid, and what the compensation terms are for image use.

Need assistance with influencer marketing agreements, other agreements related to brand rights, or legal questions related to marketing? Contact us!

Maria Puronvarsi is specialized in brand rights and marketing law

Maria Puronvarsi, maria.puronvarsi@kaulopartners.fi
+358 40 669 0527

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