Using Employee Photos and Names in Marketing: Civil Code 3344
A former employee’s photo on your website can turn into a $750 minimum claim. Civil Code section 3344 makes anyone who knowingly uses another person’s “name, voice, signature, photograph, or likeness” to advertise or sell without “prior consent” liable for “the greater of seven hundred fifty dollars ($750) or the actual damages.” Most of these claims arrive after someone leaves. The employer’s best defenses are written consent, a use that’s only incidental, and fast removal once a demand comes in.
What does Civil Code section 3344 prohibit?
Knowing commercial use of a person’s identity without consent. Section 3344(a)(1) reaches use “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services.” For an employer, that covers the usual places: a careers page, a “meet the team” section, a product video, a trade show banner, or a sponsored social media post featuring a staff member.
The statute’s definition of “photograph” is broad. It includes “any photograph or photographic reproduction, still or moving, or any videotape or live television transmission,” as long as the person is “readily identifiable,” under section 3344(b). A person is readily identifiable when someone viewing the image “with the naked eye can reasonably determine” that the person shown is the one complaining.
What can an employee recover?
More than the statutory minimum, in some cases. Under section 3344(a)(1), the user is liable for the greater of $750 or actual damages, plus “any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.” The profits rule favors the claimant: the claimant is “required to present proof only of the gross revenue attributable to the unauthorized use,” and the company is “required to prove their deductible expenses.”
The statute also says “Punitive damages may also be awarded” and that “The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.” That fee clause runs both ways. An employer that defeats a weak claim can recover its fees, which changes the settlement math for the employee’s lawyer.
The remedies are cumulative. Section 3344(g) says they “shall be in addition to any others provided for by law,” so a complaint often adds a separate misappropriation count under common law.
What changed in 2026?
A faster removal deadline. Senate Bill 683 (Stats. 2025, ch. 590) added section 3344(a)(2), effective January 1, 2026. It lets a claimant seek an injunction or temporary restraining order, and when a court grants an order to remove or stop distributing the claimant’s likeness, “the respondent shall complete the removal or recall, or cease the publication or distribution, within two business days from the day the order is served, unless otherwise required by the order.”
The order the deadline attaches to is one under Code of Civil Procedure section 527(c), which governs temporary restraining orders granted without notice when it appears “great or irreparable injury will result to the applicant before the matter can be heard on notice.” Two business days isn’t much time if the image sits in printed materials, a third-party ad platform, a franchisee’s website, or a video already in circulation. Employers should know where employee images live before anyone asks.
Is there a defense when an employee only appears in the background?
Yes, and it’s written for employers. Section 3344(c) says that when an employee’s photograph or likeness in the employer’s advertisement “is only incidental, and not essential, to the purpose of the publication,” there’s “a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use.”
Because the statute requires a knowing use, that presumption matters a great deal. A photo of a busy warehouse floor or a crowded holiday party used to illustrate company culture is a very different case from a headshot of a named employee endorsing a service. The group-photo rule helps too: under section 3344(b)(2), a person in a photo with others must be “represented as individuals rather than solely as members of a definable group,” and section 3344(b)(3) treats someone as part of a group if they appear “solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.”
Does consent end when the employee leaves?
The statute doesn’t say. It requires “prior consent” and is silent about how long consent lasts or whether it can be withdrawn. That’s why the scope of the written consent matters so much. A release signed at onboarding that covers use during and after employment, names the kinds of media, and says what happens on departure gives the company a defense it can point to. A casual verbal okay at a team event gives it very little.
Even with good paperwork, the practical answer is often to remove a former employee’s featured image on request. Keeping a headshot up to win a consent argument rarely makes business sense, and the two-business-day rule now applies if a court orders removal.
How does the exposure break down?
| Issue | What section 3344 says | What it means for the employer |
|---|---|---|
| Minimum recovery | Greater of $750 or actual damages (§ 3344(a)(1)) | Each claimant has a floor, before profits, punitive damages, or fees |
| Profits | Claimant proves gross revenue. User proves deductible expenses (§ 3344(a)(1)) | Ad spend and revenue records for the campaign become discoverable |
| Fees | Prevailing party recovers fees and costs (§ 3344(a)(1)) | Fee exposure runs in both directions |
| Removal order | Comply within two business days of service (§ 3344(a)(2)) | Know where every image is published |
| Incidental employee image | Rebuttable presumption the use wasn’t knowing (§ 3344(c)) | Background and group shots are easier to defend |
| News and public affairs | No consent required (§ 3344(d)) | Rarely applies to ordinary marketing |
What should an employer do when a removal demand or claim arrives?
- Preserve the records under a litigation hold: the image files and metadata, every page and post where the image appeared with dates, the campaign’s ad spend and revenue reports, and any signed release or onboarding form.
- Calendar any response deadline in the demand, summons, or restraining order papers, and check whether the company’s general liability, media liability, or employment practices liability (EPLI) policy has notice requirements.
- Identify everyone who chose and approved the image, and make sure no one treats the request as a reason to withhold final pay, references, or anything else that could look like retaliation.
- Take the image down from the channels the company controls and ask outside vendors and ad platforms to do the same, keeping a dated record of each request.
- Talk to a lawyer before responding to the demand, offering payment, or signing anything that admits the use was unauthorized.
Employers already in a dispute can find more on defending employment lawsuits in California on the firm’s employment defense page.
Employee likeness questions from California employers
Do we need written consent to post a photo of current employees?
The statute requires “prior consent” without saying it must be written, but written consent is the only kind that’s easy to prove. A short release that covers the media the company uses, use after the employee leaves, and the right to keep archived materials will answer most later disputes. It’s best signed separately from the arbitration agreement and the handbook acknowledgment.
Is a LinkedIn post announcing a new hire a commercial use?
Possibly. A post that only announces the hire looks less like advertising than one that uses the employee to promote a service. Section 3344(e) says commercial sponsorship alone doesn’t make a use one that requires consent, and whether a use is directly connected to advertising is a question of fact. Getting consent before featuring anyone avoids the argument.
Can a former employee demand removal of a group photo?
They can ask. Whether they have a claim depends on whether they’re singled out. Under section 3344(b), someone who appears only as part of a definable group, because they happened to be present and weren’t singled out, isn’t treated as individually identified for the statute’s purposes. A cropped or captioned image that singles out one person is different.
Does section 3344 cover an employee’s voice in a recorded ad?
Yes. The statute lists “voice” among the protected attributes. An employee who records a radio spot, a phone greeting used in marketing, or a narrated product video has the same consent rights. Releases for audio and video work should name voice use and say whether the recording can be used after the employee leaves.
If a former employee says you’re using their image without permission
If your company has received a demand to remove a former employee’s photo or a complaint under section 3344, the signed release and the way the image was used usually decide whether there’s a real claim. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving the use of employee names and likenesses. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Civil Code section 3344, as amended by Senate Bill 683 (Stats. 2025, ch. 590), effective January 1, 2026, and Code of Civil Procedure section 527.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.