Short answer: No, brands cannot use your photo simply because you are wearing their product or participating in an event they are sponsoring!
Even if a brand says that they can post an image of you, it doesn’t mean they are correct. Don’t take their responses on face value. More so, even if you don’t own the copyright to the image, if you are identifiable, you need to give permission for them to publish your photo to promote their brand.
Let’s look at a scenario that happens far too often – at least a couple of times a month to one person in my household. They take a photo of themselves during a training run or workout and post it on a social media account, and then *poof* it appears, sometimes within hours on a fitness magazines social media account “reposted,” “regrammed” or copied and uploaded (often with a tag to the athlete). You didn’t even know the other account existed, and gleefully they’ve even tagged you thinking you might be happy they’ve shared your image.
Now, be aware that when you enter an event you may also be giving a photo release including for promotion or advertising for event sponsors. The terms and conditions of event entry often details this photo release, so be aware that you may have provided a release – this is a great reason to make sure you do read the terms and conditions.
Or what about this scenario: you happen to be wearing a shirt or a pair of shoes that are visibly a specific brand, and that brand excitedly “regrams” your image saying how glad they love that you are wearing their product. You are not sponsored by that company or have any relationship with them, and you haven’t given permission for them to use that image of you. Or maybe you’d love to have a sponsorship relationship with them so you’re not sure if you want to rock the boat. I mean, aren’t they more likely to sponsor you if you don’t argue with them about them using your photos, after all you are wearing their product – doesn’t that give them rights?
In the scenario above, the athlete in the image is also the photographer so copyright ownership is clear and straightforward. There are other situations where you might not be the copyright owner, but you may have publicity rights over your likeness. The brand must protect any trademarks they have, so you must not publish an image (or caption) that infers that they endorse you, or that you have any kind of relationship unless you, in fact, do.
Say like this scenario: What if you have a commercial license to use the image taken of you during a race, event, or competition on your social media or website, and a brand or other individual or for-profit company takes your work and uses it in any form?: on their social media channels, website, or even an advertisement. It is not unheard of for an athlete’s image (taken by a photographer with whom they have a contractual relationship) to be taken and used for a billboard without the knowledge or permission of either the athlete or the photographer!
What can you do? What should you do?
For brands: ask permission before “regramming” or reposting. That athlete may want a relationship with you and may be willing to give you permission. They may also indicate that using their images in any format (including social media) requires a license fee. This kind of agreement would allow for authorized use or at least negate a lawsuit for the image you already infringed.
Credit is Not Enough
Giving credit does not negate copyright infringement. Say it again. Credit is not enough. It’s like being paid for exposure – you only get cold. If there has been unauthorized use of an image, then there has been copyright infringement. At this point, realizing that there has been a mistake made, or realizing that the copyright owner, or publicity rights owner, won’t back down, many brands will declare that they will remove the image from social media platforms and won’t use the image again in print publications. However, the brand has already benefitted from the use of the image, and compensation for the unauthorized use of the image can be rightly claimed.
If a brand uses your image or an image of you they might have good intentions, they might even say that they are sharing your image to support you or the photographer or the event, but this also is not a defense for copyright infringement. All of their commercial activity is held to the same standards – the motive for copyright infringement does not change the facts.
So, if a brand uses an image of you or an image you own, without permission, you have some choices to make about how to handle that. But whatever you decide it doesn’t change that they committed copyright infringement. You might happily accept a sincere apology and removal of the image, or you might negotiate a fee for unauthorized use and a license for further use. You might be happy with sharing this article to educate and warn against further copyright infringement.
If you are concerned about the use of images of you, and images for which you own copyright, then reach out to an attorney familiar with the fitness industry and intellectual property law. You should be protecting yourself from unauthorized use of your likeness – not just because the law allows for it, but also because you never know where those images could end up down the road.