How to Legally Use Employee Photos: A Guide for Pennsylvania Small Business Owners

In the age of social media marketing and branding, using images of your team can humanize your business and build trust with customers. However, as a small business owner in Pennsylvania, snapping a quick photo of your employees for Instagram isn't just a matter of social media strategy - it’s a legal one.

Under Pennsylvania law, individuals have a Right of Publicity which protects against the unauthorized use of their likeness for commercial gain. To help you navigate these waters, here is a guide to staying compliant while showcasing your best asset: your people.

To protect your business from legal liability in Pennsylvania, you must obtain written consent before using an employee’s name, image, or voice for any commercial purpose (including social media posts, brochures, or your website). A handshake or a verbal "it’s fine" is not enough to satisfy the requirements of the Pennsylvania Right of Publicity Law.

Understanding the Legal Landscape in Pennsylvania

Pennsylvania recognizes both a statutory right and a common law right to publicity.

Statutory Right of Publicity:

Pennsylvania law (specifically 42 Pa. C.S. §8316) protects your employees’ "Right of Publicity." This statute prohibits anyone from using a person’s “name or likeness” for commercial or advertising purposes without their written consent.  The term "name" or "likeness" is any attribute of a natural person that identifies them to an ordinary, reasonable viewer or listener. These attributes include: name, signature, photograph, image, likeness and their voice.

Common Law: 

Even if an employee doesn't have celebrity-level "commercial value," they may still have a claim for "appropriation of name or likeness" under privacy laws if their image is used to benefit the business without permission.

Violations can lead to injunctions (orders to take down the images) and monetary damages, including the profits attributable to the unauthorized use of the image.

Practical Steps to Obtain Consent

1. Implement a Formal Photo Release Form

Do not rely on the "general" language in your employee handbook. Create a standalone Photo and Likeness Release Agreement. A robust release should include:

• Clear Authorization: Explicit permission to use their name, image, voice, and likeness.

• Scope of Use: Where the images will appear (e.g., website, Facebook, print ads).

• Duration: State that the consent is irrevocable and survives the end of their employment.

• Compensation Disclosure: Explicitly state that the employee will not receive additional royalties or payment for the use of these images.

2. Make it Part of Onboarding (But Keep it Optional)

Include it in the paperwork that you have all new employees sign when they join your team. While it is best to have employees sign these forms during onboarding, consent must be voluntary. You should never retaliate against an employee who declines to be photographed. Keeping a "Yes/No" log in your HR files ensures your marketing team knows exactly who can be featured in the next company post.

3. Re-Confirm for Specific Campaigns

If you are planning a high-budget advertising campaign (like a billboard or a paid TV spot), it is a best practice to have the featured employees sign a project-specific release. This provides an extra layer of protection and ensures the employee is comfortable with that specific level of exposure.

The "Dos and Don'ts" of Online Depiction

When posting images of your team, legal compliance is only half the battle; you must also manage professional boundaries and safety.

What You SHOULD Depict:

• Professional Context: Employees performing their job duties, interacting with customers (with customer consent!), or participating in community service events.

• Candid Team Culture: Group shots at holiday parties or team-building events (provided everyone in the frame has signed a release).

• Diversity and Expertise: Showcasing the different roles and talents within your company to build a well-rounded brand image.

What You SHOULD NOT Depict:

• Private Life/Sensitive Situations: Avoid photos of employees in "seclusion" or private moments. Under Pennsylvania common law, "intrusion upon seclusion" and “invasion of privacy” are separate legal claims.

• Unsafe Work Practices: Ensure no one is depicted violating governmental regulations (e.g. OSHA standards) or company safety policies, even "for a fun photo."

• Identifying Information: Avoid shots where sensitive documents, computer screens with client data, or badges with full names/ID numbers are visible.

• Controversial Contexts: Be cautious about using employee images in posts related to political or highly sensitive social issues unless they have specifically agreed to be the "face" of that particular message.

Your employees are your brand's greatest ambassadors, but their rights to their own image do not end when they clock in. By implementing a clear, written consent process and being mindful of how you portray your team online, you can build a vibrant digital presence while keeping your business legally secure.  The team of small business attorneys at Fiffik Law Group can help prepare a social media and marketing policy for your company, along with enforceable employee authorizations, to give your business the security it needs to launch its marketing efforts.