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Honus Wagner and Employee-Privacy Rights

The T206 Honus Wagner is considered the Holy Grail of baseball cards. The card is so rare and coveted by collectors that one in mint condition fetched $2.8 million in 2007.

The American Tobacco Company (ATC) issued the cards in cigarette packs in 1909. But Wagner, one of the best players at the time, had refused to give ATC permission to use his image on the cards. (Most likely it was because he was anti-tobacco, but it might have been because he wanted more money--the exact reason is lost to history.) So Wagner threatened to sue and forced ATC to recall the cards. ATC thus ended production of the Wagner card, but only after 60 to 100 of the cards got out to the public. About 50 of them are known to still exist. That scarcity is the reason for the mind-boggling value of the card.
What does a 103-year-old baseball card have to do with employment law? Kansas has long recognized a common-law action for invasion of privacy. The right of privacy actually consists of several distinct rights, one of which is protection from “appropriation.” The Honus Wagner card is a perfect example of appropriation: one person or entity uses another person’s name or image, without permission, to advertise its business or product. Appropriation claims can arise from the employment relationship if the employer uses pictures of an employee in advertising or promotional materials without consent.  
The Kansas Supreme Court first recognized a cause of action for appropriation in 1918, not long after the Honus Wagner card recall. The Court found a violation of privacy where a “dry-goods store . . . caused moving picture films to be taken of [a customer’s] face, form, and garments [without her knowledge or consent], and afterwards procured the films to be developed, enlarged, and used to advertise their business, by public exhibition in a moving-picture theater in the neighborhood where she lived.” (Don’t you love that early-twentieth-century language?)
The Court discussed appropriation in the employment context for the first time in the 1950s. In that case, an employee sued his employer after his image appeared in a company advertisement that ran in nationally circulated magazines. The Court held that the employee was precluded from recovering because he had voluntarily posed for a photograph and did not suggest or fix any restrictions on its use, and thus impliedly consented to the company’s use and publication of his photo.   
If your company intends to use photos or images of an employee (or anyone else for that matter) in an advertisement, brochure, web site, employee handbook, or any other publication, get the person's consent first. Although consent may be implied if the employee allows the pictures to be taken, knowing they will be used for the company’s benefit, why take the chance a judge or jury will find otherwise? 
Always obtain an express written consent from the employee. Then keep it on file, along with the picture, for as long as the company or its advertising agency, publishing house, etc. keeps the picture. In drafting the consent, use language broad enough to cover any and all possible uses of the photos. Also specify that the consent is of unlimited duration and is not affected by subsequent changes in the employment relationship. Have your lawyer assist in drafting the consent, or at least run it past your lawyer, to make sure it passes muster. Courts have found that an employee’s consent to use her name or likeness, in the absence of express terms to the contrary, may be restricted to certain uses, or limited in duration, such as the tenure of the employment relationship.  

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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