copyright defamation photography covid-19
Can I sue a publication for using my picture in an unflattering light?
<p>I was walking down the street with my boyfriend a photographer asked if he could take a picture of us. We agreed and he snapped the photo and left. No consent forms were signed. Now the photo is being used for COVID 19 testing ads and on websites talking about rent forgiveness by major publications and websites. Do we have any grounds to sue for defamation? The photos imply we're sick and/or struggling financially, neither of which are flattering.</p>

<p>No one can give you a meaningful answer unless you specify what jurisdiction you're in. Assuming you're in the United States:</p>
<h1>There's no liability for defamation.</h1>
<p>The company using your picture isn't saying anything about you. Whatever you might feel the implications are, the reasonable reader would not view the ads and conclude that you are actually sick or struggling financially. Even if they would, it is not defamatory to say that someone got sick or that they are struggling financially.</p>
<p>As you indicated, those implications would merely be unflattering, and there is no liability for saying something unflattering about someone.</p>
<h1>There's potential liability for "misappropriation of likeness."</h1>
One of the four commonly recognized privacy torts covers the misappropriation of a plaintiff's likeness. The classic case would involve the use of a celebrity's name or picture to sell a product that she has not endorsed. 
<p>Some states allow lawsuits for misappropriation; others do not. Even among the ones that do allow it, there is some variation as to the facts you must prove to win the case. As I recall, some states require that the defendant use the name or likeness for commercial purposes and some require that the plaintiff's likeness already had some meaningful value outside the context of the misappropriation in question.</p>
<p>If you're interested in pursuing the case, contact a lawyer with experience in privacy torts in your jurisdiction.</p>

<blockquote>
<p>Do we have any grounds to sue for defamation?</p>
</blockquote>
<p>At the outset it seems unlikely, although this is hard to determine without seeing or knowing more details about those ads. Depending on details that are missing in your description, you might have other claims that have nothing to do with defamation such as <em>unjust enrichment</em>.</p>
<p>It is common knowledge that people appearing in ads do not actually suffer the struggles portrayed therein. This practice is so common that it basically constitutes the default presumption. Unless the ads make false representations which override that default presumption and are detrimental to your reputation, you will be unable to prove that a reasonable person has or would have a negative impression of you based on what the ads portray. In that case, it cannot be concluded that the ads defame you.</p>
<p>You mention that &quot;<em>[n]o consent forms were signed</em>&quot;. In most claims this might not suffice, since signing a document is not the only form of consenting to the use of one's image. An authorization can be verbal, or it may be inferred from the person's conduct or acts.</p>
<p>Your short description has no indication of any communication between you and the photographer other than the permission to take a picture. A failure to ask the photographer about the purpose of the picture(s) would weaken --although not necessarily defeat--  a claim of abuse of your image or of someone else's unjust profiting therefrom. That is because your failure to inquire is tantamount to a disregard on your part as to what a stranger might do with your image. Consequently, in many contexts this could be construed as your waiver of some rights or entitlements.</p>
