A photograph going viral may create a great marketing opportunity, but popularity does not give businesses the right to commercially exploit someone’s identity.
Social media trends move incredibly fast. A photograph, dialogue, movie scene or meme becomes popular in the morning, and by evening, businesses are using it to promote everything from restaurants and clothing stores to real estate and mobile phones. The recent social media attention surrounding Sukumara Kurup is a good example. Several businesses have creatively connected the trending subject with their products and services, hoping to benefit from the public attention surrounding it.
Trend-based marketing can certainly help a brand gain visibility. However, entrepreneurs should understand an important distinction: just because a person’s photograph is circulating widely on social media does not necessarily mean that businesses are free to use it for advertising.
One of the most common misconceptions in digital marketing is that anything available on the internet can be freely used. A photograph found through Google, Instagram, Facebook, WhatsApp or a news website may still be legally protected.
There can potentially be two different issues involved. The first relates to the photograph itself. Copyright in a photograph may belong to the photographer, media organisation, agency or another rights-holder. The second relates to the person appearing in that photograph. Using an identifiable person’s image to commercially promote a business can raise questions relating to personality and publicity rights, privacy, misrepresentation and, depending on the circumstances, reputation.
Therefore, finding a photograph online is very different from obtaining the right to use that photograph in an advertisement.
Context is particularly important. Suppose an individual shares a humorous meme about a person who is currently trending. Depending on the facts and circumstances, such use may involve humour, satire, parody, commentary or public discussion.
Now imagine a restaurant takes the same person’s photograph, places its logo next to it and writes, “Even he couldn’t hide from the taste of our biriyani.” The purpose has now changed. The person’s identity is being used to attract attention to a product and promote a business.
That commercial element can significantly change the legal position. Indian courts have increasingly recognised personality or publicity rights in cases involving the unauthorised commercial exploitation of an individual’s identity. A person’s name, photograph, likeness, voice or other distinctive attributes cannot automatically be treated as advertising assets merely because that person is well known.
The recent Sukumara Kurup-related trend also demonstrates why businesses need to verify viral content before turning it into advertising. A photograph circulated widely on social media claiming to show Sukumara Kurup. It was subsequently reported that the individual appearing in the photograph was actually someone else.
Consider what happens if a business immediately downloads that photograph and creates an advertisement around it. The issue is no longer simply whether Sukumara Kurup’s identity can be used in an advertisement. The business may have used the photograph of an entirely different person without permission and portrayed that individual as someone connected with a notorious criminal case.
What appeared to be a clever way of joining a viral trend could therefore create a much more serious legal problem.
Entrepreneurs frequently make marketing decisions based on what competing businesses are doing on social media. If ten brands use a trending photograph, the eleventh brand may naturally assume that it is safe to do the same.
But widespread use does not establish a legal right. The fact that hundreds or even thousands of social media accounts have copied a photograph does not remove the copyright attached to it or automatically give businesses permission to commercially exploit the identity of the person appearing in it.
Virality tells us how popular a piece of content has become. It does not tell us who owns it or whether we have permission to use it.
The issue becomes even more relevant when celebrities are involved. Imagine a clothing brand using the photograph of a popular actor in an advertisement with the words, “The style everyone wants.” Even if the advertisement does not expressly state that the actor endorses the brand, its overall presentation could potentially create an impression of association.
Indian courts have recognised protection against unauthorised commercial exploitation of personality attributes. The Delhi High Court’s decision concerning actor Anil Kapoor, for example, dealt with unauthorised exploitation of his name, image, voice and other elements associated with his personality.
Businesses should therefore be particularly cautious before using celebrities, sportspersons, influencers or other recognisable individuals in promotional material without appropriate permission.
Artificial intelligence has introduced another interesting dimension to the issue. Instead of downloading a celebrity’s actual photograph, a business can now ask an AI tool to generate an image that closely resembles that person.
Does that automatically make the advertisement legally safe? Not necessarily.
The important question is not always whether the business used the person’s original photograph. If an AI-generated image clearly identifies or imitates a particular individual and is commercially used in a manner suggesting association or endorsement, questions surrounding personality rights and misrepresentation can still arise.
AI changes the method through which the image is created. It does not necessarily remove the legal concerns associated with commercially exploiting someone’s identity.
Another common practice among businesses is to download an image from the internet and add a line saying “Image courtesy: Google” or “Credits to respective owner”.
Neither statement necessarily gives the business a legal right to use the photograph.
Google helps users discover images hosted on different websites. That does not mean Google owns those photographs or grants businesses a commercial licence to use them. Similarly, acknowledging an unknown copyright owner is not the same as obtaining permission from that owner.
Credit and permission are two entirely different things.
None of this means that businesses should stay away from trending topics. Trend marketing can be extremely effective, particularly for smaller businesses trying to gain organic visibility on social media. The better approach is to use the idea behind a trend creatively rather than automatically copying the photograph or identity associated with it.
Before publishing such an advertisement, a business should consider whether it has the right to use the photograph, whether someone’s identity is being used to promote a product or service, whether consumers could interpret the advertisement as suggesting an association or endorsement, whether the information behind the viral photograph has been verified, and whether the content could falsely portray or damage the reputation of the person shown.
In many situations, the same marketing idea can be communicated through original illustrations, generic characters, creative copy, typography or other visual concepts without directly using an identifiable person’s photograph.
Social media creates pressure on businesses to react quickly. Something begins trending in the morning, a designer creates a poster in the afternoon, and by evening the brand has joined the conversation. But legal and reputational consequences can last considerably longer than the trend itself.
An advertisement can be deleted from Instagram or Facebook, but screenshots, shares and forwarded copies may continue circulating. Businesses should therefore look beyond the immediate reach, likes or engagement that a trending advertisement might generate.
Good marketing captures attention without unnecessarily borrowing someone else’s identity.
So, before using a viral photograph to sell a product or promote a business, entrepreneurs should ask themselves one more question beyond, “Will people notice this advertisement?”
“Do we actually have the right to use this person to get their attention?”
(The author is a business and brand consultant/registered trade marks agent.)