Movie director Wu Nien-jen (吳念真) on Facebook complained about the misleading use of his image in the marketing materials of a supermarket chain, which made it appear he was endorsing products he had no wish to. The ensuing uproar obliged the chain to issue an apology.
If a company uses someone’s image to endorse a product legally, a distinction must first be made between a person’s ownership of their likeness and the copyright of the image.
The right to one’s likeness is the legal ownership of one’s appearance and this of course belongs to the individual themselves. However, copyright belongs to the person who created the image. Consequently, when using an image, both the rights to the likeness and the copyright to the image need to be obtained.
Wu’s photograph was taken for the purpose of endorsing a drinks brand. Wu or his agent, would have approved the use of his likeness and the photographs themselves were taken by the drinks company or an ad agency.
That they were to be used in ads related to drinks would certainly have been within the scope of the contract for the product’s endorsement and Wu or his agent would have agreed for his likeness to be used, as would the person owning the copyright of the image taken.
An image’s approval may apply to a wide range of applications, such as billboards, adverts, TV and Internet ads, and direct-marketing materials, to name but a few. The wording of the contract would not have listed all the possible uses; it would probably only have laid out a few of the important ones and made clear that the contract was to cover all forms of marketing.
The fact that Wu has questioned the way his likeness was used suggests that it was not used in the way either he or his agent had given their approval for, and that his image appeared in direct-marketing materials gave people the false impression that he endorsed the company for whom they were printed.
If the supermarket’s subsequent announcement is to be believed, it was authorized to use the image by the drinks company it was working with, but the more contentious issue is whether a direct association can be made with the supermarket’s products and the drinks endorsement from the way the materials were written and laid out.
Nowadays, it is often difficult to determine the exact nature of the connection between an advert and the displayed product, and so it is difficult to know what is being endorsed — the other products on the page or the drinks.
To ensure there is no problem with an image, the company using it generally confirms that it has been approved and signs an agreement to that effect, to ensure that all is above board.
If it is subsequently discovered that there is an issue, it is the responsibility of the company that provided the image. However, if the person using it fails to check the correct usage of the image and uses it in ways in which it was not approved, they might be guilty of violating the terms of the agreement and responsible for compensation.
It is possible that the supermarket was guilty of using the image inadvisedly in order to save some money, or simply that it believed the way it used it on direct-marketing materials fell within the allowable scope of its right to the likeness, and neglected to check what its contractual obligations were.
However, more important is the matter of respect shown to the person whose likeness was used. Even if the way in which it was used was technically legal, it would have been good form to check with the person concerned beforehand.
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