Can I Use A Public Domain Picture Of A Celebrity On My Website?

Celebrity Endorsing A lot of people on the internet are starting to become familiar with copyright laws.

They know, for example, that you are not supposed to save and use a picture from someone else’s website.

Sure, theft of images online is pretty rampant. But honest business owners avoid copyright claims by writing their own web copy and blogs, and buying licenses from stock phone companies.

Or they use images listed on Google or the public commons wiki with permissive use licenses.

Using images with commons license can save you a little bit of money. But you want to make sure you read the license grant and know what you are allowed to do with the image. Sometimes they exclude commercial uses (and if you are in business, you are a commercial use).

Copyrights, though, are not the only issues that arise when you put pictures on your website (or any digital or print products).

Advertising laws, for example, can be triggered. Does your image imply a promise of something that is not true?

People in the health, nutrition, financial and self-improvement areas are prone to fall into that trap. For example, if you are selling a vitamin and imply that someone will lose a ton of weight by a picture you include, without a claim being substantiated, you may find the FTC knocking on your door.

Same story if you are implying from a photo that people will make certain incomes from your product or service. Don’t promise incomes or cures for cancer, even by implication!

Just ask Kevin Trudeau. He’s in a Federal prison now….

If you use a celebrity’s image, they also have a property right in their “celebrity,” which they sell when they endorse a product. Using their image in a commercial setting, even with a disclaimer, could get you sued for big, big bucks.

Sometimes it is fair to use a public celebrity image, though. Do you know how to tell the difference between fair use and stealing their rights to their publicity?

Watch our video if you want to learn more about when a celebrity image is permissible and when it raises red flags.

Video Transcription:

Say you found a public domain picture of a celebrity on Google Images. Can you put their picture on your website?

If you are a news website and using their picture to discuss something newsworthy about them, then sure.

If you are a parody website and using their picture as part of a parody, then go ahead.

But if you are selling a product or service of any kind and thought their picture would help sell it, then no way.

You cannot imply in any way that a celebrity approves, uses or endorses your product without their express permission.

A disclaimer will not be enough.

This would qualify as false advertising and violates advertising laws. Plus you would be risking a lawsuit from the celebrity.

Having a license to their image may avoid a copyright suit, but it will not avoid these other problems.

Do you know where your legal land mines are? To find out, call us for a Business Risk Review at 800-449-8992 or email us at [email protected].

Are you at risk for CAN-SPAM fines?

spamE-mail marketing, such as newsletters and promotions to customer lists, is highly effective. That is why most companies engage in some type of e-mail marketing.

Yet, many companies are unfamiliar with the laws that regulate e-mail marketing, such as the CAN SPAM Act. Companies jeopardize their livelihood with every e-mail sent that is not in compliance with CAN SPAM.

I recently received an e-mail from a company’s blog that I used to follow. It told me about a new, featured post, and invited me to visit the blog.

Some time ago, though, I stopped reading this blog. So I wanted to unsubscribe. But when I scrolled to the bottom of the email, there was no unsubscribe feature. Annoyed, I emailed the sender and requested removal instead. I hope they follow my request and are not offended by it.

Failing to include an unsubscribe feature in a commercial e-mail does more than frustrate your recipients, though. It can cost the sender up to $16,000 in fines per e-mail sent.

Yes, you read that right. Violations of the CAN SPAM Act can cost up to $16,000 per violation.

So what do you need to know to comply? Here are the eight most important things you need to know about CAN SPAM Act requirements:

1.  It Applies to All Commercial E-mail: Most people think of spam as “cold” emails. Cold emails (those sent without the express consent of the recipient) are not illegal. But they must comply with CAN SPAM. Perhaps more surprising, though, is that all commercial emails — even those people opt into — must comply with CAN SPAM. A Commercial E-mail is one that advertises or promotes a product or service, or content on a business website.

2.  Header Information Must Not Be Misleading: This includes the “From,” “To,” “Reply-To,” and routing information located in the e-mail. All of the information must be accurate and identify the business sending the message. Do not mask your header information to improve open rates.

3.  Subject Lines Must Not Be Misleading: Do not try to create catchy subject lines if they will misrepresent the contents of the e-mail.

4. Identify the Message as an Advertisement: Although you can choose where to put this in the message, you must identify it “clearly and conspicuously” as an advertisement.

5.  Provide a Valid Physical Post Address: E-mail marketing materials must contain a valid physical address for the sender. You can use a P.O. Box in the United States.

6.  Provide An Obvious Opt Out Option: This is perhaps the most important feature of the CAN SPAM Act and has several particular requirements:

* Opt-out must be free.

* Opt-out procedure cannot require the recipient to provide any information other than the e-mail address they want to unsubscribe.

* Opt-out procedures cannot require the recipient to do more than send a reply e-mail opting-out, or visit a single webpage on and internet site

7.  Promptly Remove the Requesting Person From Your List: You only have 10 business days to comply with an opt-out request.

8.  You Are Responsible for Your Marketing Company’s Compliance: You cannot contract out of your responsibility to comply with the CAN SPAM Act. Vet your marketing companies for compliance before hiring. Regardless of who send the e-mail on your behalf, the company requesting the marketing is ultimately responsible for the results.

Failing to comply with the CAN SPAM Act can financially cripple your business. Just ask Kobeni Inc., which had to pay $350,000 to the FTC when it sent emails prior to rolling out the Affordable Care Act (ACA) exchanges.

Even if the FTC never sues you, failing to comply with marketing laws like the CAN SPAM Act costs you real money. It makes you look unprofessional and frustrates customers and prospects. (Just because someone unsubscribes from your email list does not mean they are uninterested in doing business with you.)

Complying with CAN SPAM Act isn’t just a legal requirement, it’s good business.

Business Law

BUSINESS LAW

Disputes, misunderstandings, and litigation impact the health and longevity of your business. Whether you’re the owner of a sole-proprietorship, a partner in a partnership, a member of a limited liability company, or shareholder in a corporation, it is critical to ensure that your entity’s legal and financial interests are being protected by an aggressive and experienced business law lawyer.

At Bellatrix PC, we pride ourselves on providing our clients with responsive, tactical business solutions.  Through critical analysis of the issues at hand, our legal team has repeatedly achieved favorable outcomes for numerous clients across a diverse range of industries and legal structures.  As a results-oriented firm, we aim to resolve complex disputes as rapidly and efficiently as possible, so that you can resume normal operations with clarity and confidence.

To arrange for a private consultation with the commercial attorneys of Bellatrix PC, call our law offices at (800) 449-8992 today.  The sooner you consult with us, the sooner we can get to work addressing your legal matter.

Experienced Business Law Lawyers

Even outwardly simple business transactions can lead to confusion and uncertainty.  Businesses of all structures are subject to myriad state, federal, and municipal regulations, which collectively encompass matters ranging from workplace discrimination to job site safety to the enforceability of non-compete contracts and other contractual agreements.

Even for highly knowledgeable and experienced entrepreneurs, it can be virtually impossible to keep abreast of the business world’s numerous and ever-shifting laws while busy with the daily demands of running a company.  All too many business owners have been unpleasantly surprised by federal investigations, the imposition of civil penalties, and lawsuits by employees, despite believing they were in full compliance with the law.

At Bellatrix PC, we bring a nuanced practical understanding of the full scope of business law to each and every legal matter we handle.  We will listen to your concerns, advise you with regard to your rights and responsibilities as a business owner, and explain the potential outcomes of the courses you could take on the path toward resolving your issue.

Should litigation arise, we are fully prepared to defend your business all the way to trial if necessary.  However, we are also qualified to function as mediators, to represent your company during arbitration, or simply to act as general counsel for your basic, daily questions and concerns.  We will help you understand the benefits and disadvantages of each available legal strategy as it pertains to your matter, so that you can make an informed decision about what’s right for your company.  When you work with Bellatrix PC, you can feel confident that your business is in capable hands.

Representing Partnerships, Corporations, and LLCs: Cases We Handle

As business owners ourselves, we are personally familiar with the seemingly endless complexities which can arise in business and commercial law.  In order to serve our clients effectively, we handle a wide variety of legal matters throughout every stage of the business life cycle, from formation to sale and dissolution.  No matter which point in its life cycle your company has reached, our dedicated attorneys are prepared to counsel you.

We are equipped to handle the full spectrum of commercial matters, including but not limited to the following:

Breach of Contract

  • Contracts act like blueprints, setting clear expectations for all parties to any business agreement.  When a contract is breached by one or more parties’ improper actions or failure to act, the other party or parties can suffer significant financial harm.

Business Formation and Dissolution

  • Selecting the right legal structure is critical for the long-term success of any business.  Likewise, proper dissolution ensures that debts and assets will be distributed appropriately when the company changes hands or reaches the end of its life.

Commercial Litigation

  • All types of disputes can lead to destructive lawsuits.  Whether your company has been accused of breaching a contract, engaging in discriminatory hiring practices, or other alleged misconduct, our attorneys will vigorously defend your business in court.

Contract Drafting and Negotiation

  • Contracts are the foundation upon which all business transactions are built.  We will prepare, review, revise, and aggressively negotiate your contracts with employees and other businesses, ranging from licensing agreements to commercial leases.

Employment Law

  • Whether your company has been named in a gender discrimination lawsuit, needs assistance determining overtime classification and fair payment of wages, or you simply have questions about drafting an employee handbook, our employment law attorneys are here to help.

Trademarks and Intellectual Property

  • Databases, recipes, software, and related information can be a company’s most valuable assets.  We work to protect your intellectual property and trade secrets with clear and enforceable contracts.

Our other areas of practice include, but are not limited to, the following:

  • Business Insurance
  • Creditors’ Rights and Debt Collection
  • Hiring, Firing, and Layoffs
  • Independent Contractors
  • Leasing Property and Equipment
  • Libel, Slander, and Defamation
  • Mergers and Acquisitions
  • Minimum Wage and Wage Disputes
  • Non-Competes and Non-Disclosure Agreements
  • Non-Profit Organizations
  • Payroll, Salary, and Bonuses
  • Permits and Licensing
  • Sexual Harassment
  • Stock Options
  • Tax Compliance
  • Unfair Competition and Unfair Business Practices
  • Whistleblower Lawsuits
  • Workplace Discrimination
  • Wrongful Termination

Whether you’re thinking about starting a company, need assistance resolving a stubborn dispute, or have already been named by a commercial lawsuit, the attorneys of Bellatrix PC have the skill and knowledge to help your business reach its goals.

To schedule a private appointment, call our law offices at (800) 449-8992 today.

What’s Your Problem?

Maybe We Can Help. Request Your Consultation Today.

Alicia Dearn

Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.


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Disclaimers

The articles published by Bellatrix PC are for informational purposes only and do not constitute legal advice. If you have a legal issue, please get competent advice from a licensed attorney in your jurisdiction. Use of Bellatrix PC's site is subject to our Attorney Advertising Disclaimers.

Are there any laws I should know about when advertising my business?

Advertising Laws Video YES! Advertising laws are complicated. There are a lot of them. And there are even more urban myths about what rights consumers have (or do not have). But the consumer and advertising laws have a dominant theme: don’t screw your customer and trick them into buying stuff from you. That seems like common sense, right? It isn’t always, though. I have seen many a good company get bit by things like “ladies night” (illegal in California, for example). Anyone who has been reading my blogs for a while knows that I am not a big fan of government regulations. Ladies Night is a perfect example of a regulation having a perverse effect (it’s illegal because it’s gender discrimination!). That being said, I have experiences that make me understand why they exist. For example, I was recently approached by Covington Who’s Who for inclusion in their book and on their website. I said no. They pressed on and repeatedly lowered their price. Finally, they offered me plane tickets as part of an online-only membership for $200. I asked, “what’s the catch?” They told me that the tickets have some restrictions but that was it. Since I fly a lot and can always use plane tickets and networking links into my website, I said “OK.” In retrospect, I shouldn’t have. First off, the catch on the plane tickets is that they require a 5-day hotel stay. Then they processed an order and billed me more than they represented and for the book that I specifically declined. (I never even got the book!) I immediately called them up and protested. The response: “We don’t have a recording of you saying ‘no’ so we will not refund it.” I say, “Do you have a recording of me saying, yes?” Well, of course they don’t. Hey, guys, that’s not how you make an enforceable contract! I’m annoyed. I will prevail because I’m abnormally stubborn. But it wastes my time. (Bonus Advice: if any of you get a call from Covington, tell them your lawyer advises against you affiliating with them because they suck.) All my clients are awesome people and ethical businesses, so I don’t need to tell you to not be like Covington. But I still made a video for you on general things to keep in mind when selling your products.

Are there any laws I should know about when advertising my business? YES! There are several, in fact – too many to list in this video. As a good starting place, keep in mind that the laws embody some general principles:

  1. Whatever you say about your business or products, be honest.
  2. Deal with your customers in good faith.
  3. Don’t send anyone anything they didn’t explicitly ask for.
  4. If it is unlawful discrimination in a shop, its unlawful discrimination online and in advertisements. Be very cautious when engaging in gender or race specific promotions and pricing.
  5. You should have fair and clear contracts governing your business affairs, including on your website or in advertisements.
  6. If you are advertising to children, control your content.
  7. Don’t copy other people’s work.

If you have any questions, ask a business law lawyer before putting out an ad that costs you more than it makes you. You can also see this video and others on Alicia Dearn’s YouTube Channel.

A Short History of California’s Unfair Competition Law

Stock-photo-mazeIn 1933, California passed the Unfair Competition Law, also known as Section 17200 of the Business and Professions Code. At the time of its origination, this law allowed public prosecutors and private citizens, acting for themselves or on behalf of the public as “private attorneys general,” to file lawsuits to protect businesses from the unfair business practices of competitors. By the late 1970s, legislative amendments gradually grew to protect consumers from any “unlawful, unfair or fraudulent business act or practice” and any “unfair, deceptive, untrue or misleading advertising,” also known as Section 17500.

Up until 2004, the Unfair Competition Law was very controversial because it did not require standing for the plaintiff to sue. Essentially, the person filing the claim did not have to be the person hurt by the business practice; the plaintiff did not need to be the one deceived or harmed by the business he or she sued. This is unusual in the law and led to a lot of abuses by “professional plaintiffs” who filed harassing lawsuits just for nuisance value settlements from businesses.

Additionally, even if the plaintiff won or settled the lawsuit, it would be in his or her name only, leaving the business vulnerable to being sued again for the same conduct. That is because the lawsuits were not considered to be true class action lawsuits, so a settlement or judgment had no preclusive effect (no res judicata). As a result, many attorneys were using Section 17200 as an “add-on” claim in traditional torts lawsuits to raise the prospect of a larger payout.

In November 2004, the law was updated once again with the passage of Proposition 64. The Unfair Competition Law now requires that a representative claim seeking relief on behalf of others may be brought only by a “person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” Proposition 64 also added language that cross-references California’s class action statute, which means that all representative actions under Section 17200 or Section 17500 must meet regular class action requirements.

The ability to defend a typical California Unfair Competition Law action requires an in-depth knowledge of this unique statute, a command of the rules and procedures governing class-action litigation and, in many cases, an understanding of substantive areas of law that are used to trigger the Unfair Competition Law violation. Here are just a few examples of actions that violate Section 17200 and Section 17500 include:

  • •False Advertising and Promotion: A business makes a statement in advertising that is either untrue or is likely to deceive the customer.
  • •Misleading or Deceptive Trade Practices: A business deceives the consumer as to the quality, source, origin, or endorsement of the product.
  • •“Palming Off” Goods: A business portrays its goods to the public as being the goods of another or originating from another source.
  • •Trade Dress Violations: A business very closely copies the appearance of a competitor’s product and/or packaging so much that the consumer has trouble telling the difference between the two products.

Despite these changes in the law under Prop 64, many businesses can be surprised by what activities may expose them to lawsuits, even when their activities are innocently done. This law is still routinely used by predatory plaintiffs and competitive companies, alike, to obtain money from a business or quash competition.

Bellatrix PC’s clients and businesses subject to this California law are welcome to contact us to discuss a Business Risk Review to identify and correct potential liabilities or to consult on any threats or active litigation.