A recent case against tech giant Apple, Inc. provides important reminders about commercial use of photographs.

The plaintiff in the case, Abbey Dykhouse, alleges that in September 2010, a photographer (Della Marie Huff, a freelance photographer, an Apple employee, and a friend of Dykhouse) had taken photographs of Dykhouse and her puppy, Stitch.  Huff later emailed Dykhouse, asking if Apple could use “a few of those photos of Stitch” in “demo libraries,” which are sample photo collections used to demonstrate Apple products at Apple retail stores.  Dykhouse subsequently executed an Apple release form which contemplated the use of photos for one year.  Three years later, though, Dykhouse learned that Apple was not only still including images of Stitch in demo libraries, but it was also using images that showed Dykhouse herself.  She also learned that Huff’s own freelance website was offering for sale images of Stitch and Dykhouse.  But neither Huff nor Apple had paid Dykhouse for the use of the photos.  In January 2015, she sued both Apple and Huff, alleging state law claims for misappropriation of likeness (under both California Civil Code § 3344 and common law).  She later dismissed her claims against Huff.

Just the other week, a California state court judge weighed the parties’ cross-motions for summary adjudication and sided with the plaintiff.  See Docket No. CGC-15-543584 (Cal. Sup. Ct., San Francisco).  Apple had argued that Dykhouse’s suit was time-barred by California’s two-year statute of limitations because the photos were first incorporated into a demo library in 2012, and any subsequent uses of the photos did not constitute a “republication.”  In particular, Apple argued that it made no conscious decision to continue, renew, or expand its use of Dykhouse’s likeness after its initial inclusion in the demo library; rather, the continued use of the images was a result of automated processes that placed the demo library on new devices and in new stores.  The court disagreed; indeed, one press account reports that at oral argument, the judge called Apple’s argument “Orwellian.”  The court held that Apple’s uploading of the photos to new product lines, and the fact that when it used the library in a new store it sometimes translated some of the text associated with the demo library to appeal to new markets, constituted republication.

Apple had also argued that its use of the photos was authorized by a release from Dykhouse.  Dykhouse did not dispute that she had signed a release form, but disputed the scope of the release.  Apple pointed to an email Dykhouse had sent to Huff that said, “feel free to use any of it,” and urged that this gave Apple the right to use Dykhouse’s own image in addition to Stitch’s.  The court was unconvinced, noting that the full email chain between Dykhouse and Huff contemplated the use of photos of Stitch only.  The court also held that even if the release could be read to include images of Dykhouse, the written release form governed the parties’ conduct irrespective of anything they said over email, and that written release limited use to a period of one year, which Apple had exceeded.

Note that this case is not about “fair use,” which is a defense to federal claims of copyright infringement.  Here, Dykhouse did not assert that she owned the copyright in the photographs taken by Huff, so a fair use defense would not have helped Apple.  Rather, her complaint brought state law claims alleging the misappropriation of Dykhouse’s own appearance and likeness to advertise Apple products.  This case also provides an interesting counterpoint to this spring’s decision regarding an exhibition by photographer Arne Svenson, who took photographs of his neighbors without their consent; there, Svenson escaped liability under a New York invasion-of-privacy statute based on the court’s holding that the photographs were works of art and not used for advertising purposes.  State law varies when it comes to these types of claims, but in Apple’s case, the court was clearly unwilling to accept Apple’s defenses as to timeliness and release, defenses that might have been more effective if the release had been clearer.

In our digitally connected world, many people carry high-quality cameras in their pockets; images can be replicated and distributed in the blink of an eye; and content may live on for years, often being repurposed as a business expands to new products and markets.  This case shows the importance of obtaining (and abiding by the scope and terms of) a clear and unambiguous written consent before using someone’s likeness in advertisements and promotional materials, whether that means photographs of attendees at an event, images of a business’s clients or customers, or snapshots of family and friends.