Meet Georgia-based photographer and blogger, Angie Webb.
Angie’s photography has been published in Better Homes and Gardens, Food and Wine, Forbes, Jezebel Magazine, Taste of the South Magazine, Garden and Gun, Punch, and Eater Atlanta.
Needless to say, she’s pretty awesome.
You can learn more about Angie and her blog at https://angie-webb.com/
Legal question which Angie’s readers may benefit from: “What rights does a business owner—such as a restaurant owner—have when it comes to photographing patrons? Does the photographer and/or business owner need a patron’s consent when photographs are taken in public places?”
Brief Answer: If a business owner doesn’t obtain consent of the patron, he may be liable for appropriation of the patron’s likeness if he uses it on his website and/or marketing material. The reason: In Georgia, every private citizen—not just celebrities and entertainers—has a right to publicity of his own image.
Note: There are many exceptions to this general rule. For example, (1) photographs and video may be taken for purpose of security surveillance, (2) public officials have fewer rights to publicity of their image, (3) Constitutional rights to freedom of press will allow media to photograph newsworthy events, and (4) federal courts limit privacy rights of images and info which is publicly available.
I. Georgia’s right to privacy: Name and likeness rule
A. Historical precedence
Georgia may honor privacy more than many other states. For example, over 100 years ago, Georgia’s Supreme Court held “[o]ne who desires to live a life of partial seclusion has a right to choose the times, places, and manner in which and at which he will submit himself to the public gaze.” The court didn’t stop there; it went on to provide “[t]he right to withdraw from the public gaze at such times as a person may see fit…is also embraced within the right of personal liberty.” And if that wasn’t clear enough, the same court provided that “the body of a person can not (sic) be put on exhibition at any time or at any place without his consent.”
Since then, Georgia’s state courts have recognized a person’s right to his likeness (e.g., his photo), and has provided that the “exclusive use of his…name and likeness…[is] an inherent ‘aspect of his identity.’” Furthermore, Georgia specifically provides private citizens with a right to publicity of their likeness.
B. When a person can sue you for appropriation in Georgia
Thus, in Georgia, a claim for “appropriation” occurs when there has been “ the appropriation of another’s name and likeness… without consent [,and]  for the financial gain of the appropriator.” Further, a person may be liable for appropriation of another’s likeness even when taking a photograph of a person who is publicly viewable since Georgia believes “appropriation…does not require the invasion of something secret, secluded or private pertaining to…[patron].”
Thus, if a business owner photographs his patrons for any type of marketing purpose, the business owner would need the patron’s permission or else risk being sued for appropriation.
C. Federal courts have a different interpretation of Georgia’s law
However, federal courts in Georgia have chosen to interpret Georgia’s law in a more limiting way. For example, in Toffoloni v. Lfp Publishing Group, LLC, the U.S. Court of Appeals for the 11th Circuit cited the Restatement (Second) of Torts when examining Georgia’s right to publicity. In doing so, the Toffoloni court held that “the Restatement clarifies that the right of publicity does not attach to that which is ‘open to public observation.’” Further, the rationale of the Restatement is as follows: “No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter, and both are open to public observation.”
Thus, the federal court would allow more avenues for advocacy in defending the business owner in the event that a patron’s photographs are used on a business owner’s website and/or marketing material without the consent of the patron.
D. Conclusion: The best practice is to obtain consent
Still, the best practice is to obtain consent before photographing anyone whose image or likeness may be used on websites or marketing material. While the federal court may allow more avenues for defending the business owner, Georgia’s Supreme Court has yet to adopt the Restatement (Second) of Tort’s rationale as used in Toffoloni.
Because of this, the business owner should presume that Georgia will continue to honor a person’s right to control when and where his image appears. So, again, you won’t go wrong by obtaining consent first.
NOTE: PeachtreeESQ.com is not a law firm and the information here is not legal advice. For legal assistance, you should contact an attorney. The Law Office of Trey Ross, PC is a law firm located in Gwinnett County, GA which represents people and business in a variety of legal matters. You can learn more about The Law Office of Trey Ross, PC online at www.treyrosslaw.com or give Attorney Ross a call at 678-362-7576.
Pavesich v. New England Life Ins. Co., 50 S.E. 68, 69-81 (Ga. 1905)(emphasis added).
Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 296 S.E.2d 697, 703 (Ga. 1982).
 Georgia courts use “name and likeness” and “name or likeness” interchangeably. See e.g., Id; See alsoCabaniss v. Hipsley, 114 Ga.App. 367, 377 (1966)(providing “[t]he courts in this state have long recognized that one who makes an unsanctioned appropriation of another’s name or likeness for his own benefit may be liable to that person in tort”)(emphasis added).
Martin, 296 S.E.2d at 703.; See also Pavesich v. New England Life Ins. Co., 122 Ga. 190, 191, 50 S.E. 68 (1905); Cabaniss, 114 Ga.App. at 377).
Id. (providing “appropriation of another’s name and likeness, whether such likeness be a photograph or sculpture, without consent and for the financial gain of the appropriator is a tort in Georgia, whether the person…is a private citizen, entertainer, or…a public figure who is not a public official…”).