Have you ever snapped a picture at a store opening or a friend's event, only to find yourself unexpectedly captured in someone else's social media post? You might wonder if that's okay, especially if the person who posted it's a celebrity. This week, a New York appeals court tackled this very question in a case involving reality TV star Kim Kardashian, Barbetta v. NBCUniversal Media, LLC . The case centered around a photo posted on social media that accidentally included someone in the background. The person who appeared in the background sued Kardashian, claiming their image was used to promote her business. But the court ultimately disagreed.

The Lawsuit and the New York Right to Privacy

Many states, including New York, have laws that protect people’s right to privacy. In New York, there’s a specific law, called Section 50 of the Civil Rights Law, that says it’s illegal to use someone’s image in advertisements without their permission. This law is meant to protect people from having their face or likeness used to sell products or services without their say-so. In this case, the person suing, let’s call them Ms. Smith, argued that even though they were just in the background of Kardashian’s photo, it was essentially an advertisement because it showed them unknowingly endorsing Kardashian’s brand, the DASH Boutique. Ms. Smith claimed this brought her unwanted attention and potentially damaged her reputation.

The Court’s Decision and Why the Law Didn’t Apply

The court, however, ruled that the law only applies in specific situations. They looked closely at how the photo was being used and determined it wasn't promoting anything. The person suing was simply captured in the background of a casual social media post, not a staged advertisement. The court explained that the law is meant to go after situations where someone's image is deliberately used to sell something, not when it's just an incidental part of a social media snapshot.

What This Means for You in the Age of Social Media

This case highlights the difference between someone using your image for commercial purposes and simply capturing you unintentionally in a photo they share online. If you're concerned about someone using your photo without permission, it's important to consider the context. The law protects you from having your image used to sell products, but it doesn't necessarily apply to every time you appear in the background of a social media post.

A copy of the Barbetta Decision is enclosed:
https://www.nycourts.gov/reporter/3dseries/2024/2024_02514.htm