Employing a person or an image?
The image rights of employees may not be an obvious point for employers to consider but all employees have certain rights over their images and employers should be alert to these when using employee images on websites, for promotional purposes or where that image is otherwise made publicly available.
Payment for image rights
Images of certain public figures can be a valuable commodity. Therefore, the use of image is potentially more of a key concern for employers whose employees have a degree of celebrity or public renown such as some of the more successful professional sportsmen and women. Elite footballers are another example. Many football clubs use images of their footballers for a variety of promotional purposes.
You might assume that a football club has an automatic right to use the images of its footballers as they are its employees but in practice, footballers will often enter into a separate image rights agreement with their football club for the exploitation of their image, likeness, merchandising and related promotional activities. This is potentially an advantageous arrangement for the footballer as whilst their wages for training and playing are taxable as employment income, payment for use of their image rights is not employment income and so there are no deductions for National Insurance contributions for either the footballer or the football club. The lack of employer National Insurance contributions is also advantageous for the football club too. Any tax under the image rights agreement is dealt with under the self-assessment system and is not deducted by the football club at source under the PAYE system. The contract for personal image rights will often be entered into between the football club and a personal services company set up by the footballer into which he transfers his personal image rights.
Having a parallel employment contract and image rights agreement can be problematic. How much should the employee be paid under both agreements and how do you value a footballer's image? There is a risk that if the payments under the image rights agreement are deemed to be disproportionately high then this could be viewed by HMRC as wages in disguise. This is given that there is a National Insurance contribution saving to both the footballer and the club by making payments under the image rights agreement as opposed to the employment contract. There are no specific rules to follow in valuing the image rights but they should reflect the value of the employee. An employer should consider what the employee is being paid under their employment contract and ensure that the payments under the image rights agreement are proportionate and reasonable.
Back in the real world, do image rights really matter?
Pictures of (non-famous) employees are regularly used by employers for various purposes including promotional brochures, websites, recruitment campaigns, advertising and other forms of corporate communications. Whilst an average employee is unlikely to request payment for use of their image, employers should not automatically assume that they have a right to use images of their employees as they see fit.
Employers should be alert to the fact that whilst data protection legislation in the UK does not give any individual (or employee) any property in his or her personal data (including their likeness), it does regulate the way in which that personal data can be processed. In practice this means that whilst images of employees in a promotional brochure may not cause much of an issue if the image is anonymised. An employee may seek to challenge the use of their image or likeness if their photograph is included, without their consent, in publicly available material along with details of their name, job title and contact details. Best practice is therefore to ensure that the employee has given their express consent to the use of their image for business purposes.
If an employer wishes to ensure it has the express consent of its employees to use their image then it can include such a right in the contract of employment or alternatively, the employer can ask each employee to sign a waiver either when they start employment or when the employer wishes to use their image which will permit them to use the employee's likeness. Either of these options will ensure compliance with data protection legislation.
If an employee's consent is not obtained and an employer uses photographs of an employee that enable the employee to be identified from that photograph then the employee will be entitled to use data protection legislation to challenge the use of their image so if an employer is reluctant to seek the employee's express consent that an alternative might be to use stock images for publicity material instead of actual images for employees. These are available from image libraries for a fee. The actors or models featured in these will have agreed that their likenesses can be used for commercial purposes.
Suzanne Tyrrell looks at image rights from an employment law perspective and looks at what employers can do to reduce the risk of infringing those rights.
"Having a parallel employment contract and image rights agreement can be problematic. How much should the employee be paid under both agreements and how do you value a footballer's image?"