Copyright Guide for Museums and Other Cultural Organizations
15.0 Personality Rights/Privacy Rights
15.1 Photographs of Museum Visitors for Promotional Use
In Canada, some provinces have enacted statutes providing the right to privacy for individuals. In Newfoundland, Quebec, Manitoba, and Saskatchewan it is a violation of privacy of an individual to use his or her likeness for advertising or trade purposes without authorisation. Therefore, a picture of a visitor attending a museum in one of these provinces could not be used in museum promotional literature without the individual’s permission. In the other provinces, the Courts have not dealt with this issue with respect to non-famous people. However, it is generally suggested that any photographs or images showing visitors to the museum be used in promotional literature only where permission has been obtained from the persons depicted. Where a photograph or image shows a large crowd of visitors, then the right of privacy does not usually apply. Where models are hired for the purpose of using their image for promotional purposes, their written permission should be obtained. Similarly, employees of the museum should sign statements (which can be included in their employment contracts) that waive such rights for any photographs taken by the museum.
For well-known people, the common law provides a right of publicity in the tort of misappropriation of personality. This tort prevents the use of the image of a well-known person in advertisements or to promote the business of another without the authorisation of the person. The well-known person does not need to be famous, only recognisable to the community to which the ad/promotional literature is distributed. Therefore, if the museum hires a well-known local personality to perform demonstrations in the museum, the museum does not have the right to photograph this person and use the photographs without obtaining permission.
Where an individual is shown in a photograph or other work and the work is exhibited in the museum, privacy laws still apply and the permission of the person in the work may need to be obtained before the work is reproduced or exhibited. A release form is provided in Module 2 for obtaining permission of the person being photographed to use the resulting photograph for museum purposes.
