Protecting the image: applying a right of publicity to images uploaded on social networks

The uploading and sharing of personal images on social networks is one of the most popular ways to communicate online. When personal images are created, different interests arise between the creator of the image and the subject whose image is captured in the photograph. It is important to distinguish between the creator and the subject’s interests because different rights arise when a photograph is misused. While copyright law protects photographs, there is a significant gap of protection afforded to the creator’s rights and the subject’s rights. This gap may potentially result in personal images being misused by third parties when those images are uploaded online. When a third party photographs a person, the person whose image is captured is often left with limited legal protection over the use of their image. This is because the subject is not protected by copyright and must seek protection in other areas of law. The United States’ development of publicity rights has provided a rich scholarship that may be a potential model for other jurisdictions in considering whether a right of publicity may protect the misuse of personal images. This article explores whether a right of publicity is adequate to protect personal images that are uploaded online from misuse.