[Q&A] Legal Risks of Employee Portraits in Product Marketing

2025. 2. 13

Question: What are the risks of using employees' portraits on company products?

Answer: Using employees' portraits without their consent or exceeding the agreed scope, duration, or manner of use may constitute an infringement of their portrait rights, leading to corresponding liability for infringement.

Specifically, according to the relevant provisions of the Civil Code, unless otherwise stipulated by law, the production, use, or public disclosure of an individual's portrait is prohibited without their consent. Additionally, the rights holder of a portrait work may not publish, reproduce, distribute, lease, or exhibit the portrait without the consent of the portrait rights holder.

It is important to note that even if an employee consents to the company using their portrait free of charge, disputes may arise if the scope of use (e.g., specific products, geographic regions), duration of use (e.g., specific time frame, whether it extends beyond employment), or manner of use (e.g., limited to photographs or including AI-generated modifications) are not clearly defined or agreed upon. Such disputes could result in the company being deemed to have infringed the employee's portrait rights, leading to liabilities such as rectifying the impact, issuing apologies, or compensating for damages. Furthermore, the company may be forced to change product packaging, which could disrupt sales and result in financial losses.

Additionally, if the scope of the portrait license (e.g., exclusive, non-exclusive, or general license) is not clearly defined or agreed upon between the company and the employee, and the employee subsequently licenses their portrait rights to a third party (especially after leaving the company), the third party may have a well-drafted portrait license agreement and could even register trademarks using the employee's portrait. This could restrict the company's continued use of the portrait and potentially lead to infringement claims.

Moreover, if there are no or insufficient constraints on the behavior of the employee whose portrait is used, there is a risk that the employee's personal conduct (including illegal, criminal, or unethical behavior) could damage the company's and product's reputation. This could force the company to change product packaging or advertisements, resulting in significant losses.

To mitigate these risks, companies can establish internal policies and include specific provisions in portrait license agreements with employees. These provisions should address the scope, manner, and duration of use, compensation standards and payment, intellectual property ownership, and liability for breach of contract, among other matters.