Using a resident’s image, voice, or identity in promotional material without consent is more than a privacy violation, it may be an intellectual property matter. These situations often occur when facilities publish brochures, websites, or social media posts showcasing residents, sometimes even using testimonials, without appropriate legal agreements in place, which can also constitute the engagement of a nursing home abuse lawyer.
Consent Is Not Always Clear
Facilities may assume that verbal permission or an informal agreement is enough to use a resident’s likeness in advertisements. But in many states, publicity rights are protected under statutes or common law, requiring written authorization. For residents with cognitive impairments, it may not even be legally valid for them to give such permission themselves. This can put facilities at risk of legal claims not only from residents but also from their legal guardians or estates.
Consent should be specific, time-limited, and documented. In the absence of that, even seemingly benign uses can expose a facility to legal risk. Additionally, families may object to the portrayal of a loved one in a manner they feel is exploitative, especially if the images imply an endorsement of the facility.
Marketing Missteps Can Become Legal Exposure
Improper use of a resident’s likeness can lead to lawsuits alleging misappropriation of identity or even false endorsement. While facilities might argue they had good intentions, that doesn’t eliminate liability. Branding strategies involving real individuals always demand extra legal care. Missteps can result in financial damages, reputational harm, and regulatory scrutiny.
As our friends at Disparti Law Group can share, some cases have involved residents being featured in videos or photos that later appeared in regional ad campaigns. Others involved voice recordings used in podcasts or promotional interviews without confirming long-term media rights. Each of these examples raises questions not only about permission but also about ownership.
Ownership And Control Of Media Content
Elder care facilities may create their own promotional content, including photos taken by their employees. Even though the content was created by the facility, it does not overrule the individual right to control the usage of their likeness. This intersects with intellectual property law, especially in the context of rights of publicity. Unauthorized commercial use can trigger liability regardless of who captured the footage or produced the media.
The situation grows more complicated if third-party agencies are hired to produce marketing content. Without strict contractual safeguards, liability can fall on multiple parties. This also applies when a resident’s image is repurposed for digital marketing years after the original consent was given, especially if circumstances or legal authority have changed.
Facilities must also consider how content is stored and reused. For example, a photograph taken during a holiday event might be added to a stock library and used in future materials without a second thought. But if the resident has since passed away or changed legal guardianship, that reuse could constitute unauthorized exploitation.
There is also the issue of group photos or community events, where some residents may not have consented to public release. Even if one or two individuals provided written consent, the inclusion of others in the same frame can complicate the legal landscape. If you or a loved one is experiencing any of these situations, we encourage you to talk to a lawyer in your area today to begin building your case.