Illegal or Unethical?
In addition to the times when it is it illegal to take pictures of employees working, there are occasions when it is unethical. For example, if a manufacturer wants to represent a snapshot of a busy workforce but wishes to be sensitive to racial and gender ratios, a company executive might be tempted to hand out hard hats to office staff and ‘stage’ a work scene.
Although legal – assuming that all the subjects gave their consent – the World Intellectual Property Organization(1) defines this act as unethical, in that it misrepresents the people, the organization and the work environment. The latter may give rise to a lawsuit if the photo is used to gain an unfair advantage over a competitor.
It is interesting to note that an executive could inadvertently contribute to a worker’s defamation(2) of character when using a photo. For example, if a business hires a photographer to take pictures of people working and an executive adds a (possibly untrue) caption that identifies the workers as ‘burning the midnight oil on a Saturday,’ it may defame the character of a devout religious practitioner who is forbidden to work on a Saturday after a certain hour. This photo could expose the worker to contempt at his place of worship.
Are People Protected by Copyright Laws?
Even though people themselves are not copyrighted, it is possible for a person to wear something that is protected by copyright or trademark law. For example, a secretary wears a one-of-a-kind necklace that belongs to a thus far unreleased collection. This necklace is copyrighted and taking the secretary’s photo – and publishing the picture in a brochure – presents the company with a potential liability claim from the jewelry’s designer.
Illegal Means of Photography
It is illegal to set up a hidden camera and intrude on the daily dealings of workers who do not expect to be photographed. It is also illegal to take pictures in areas where an employee has a reasonable expectation of privacy(3). Defining this reasonable expectation can get problematic. It is quite reasonable for a worker to expect complete privacy in a bathroom, but this expectation may also extend to a break room, private office and kitchen area.
Right to Publicity
In addition to running the risk of taking a picture illegally, there is also the danger of using it improperly. The right to publicity (a.k.a. the right to benefit commercially from one’s likeness) is usually the fodder of celebrity vs. paparazzi lawsuits. Even so, non-celebs may also balk at their likenesses being used for a company’s commercial benefit. This may endanger a business’ bottom line, especially if a particular ad that features a worker becomes hugely successful.
So when is it illegal to take pictures of employees working? Easy! When workers do not expect to be photographed or their likenesses are not used in proper context. Avoid problems by including verbiage in the employee handbook that gives the company the right to take photos in designated areas of the workplace. Go a step further and ask employees to sign a consent form for being photographed while performing their regular tasks at work.
- “Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People.” WIPO - World Intellectual Property Organization. https://www.wipo.int/sme/en/documents/ip_photography.htm
- “Frequently Asked Questions - The basics.” PhotoRights.org. https://photorights.org/faq/1
- Krages, Bert, P. “Your Rights and Remedies When Stopped or Confronted for Photography.” https://www.krages.com/ThePhotographersRight.pdf
Photo Credit: “Photographer” by Nicolás García/Wikimedia Commons