With apps that invite photographs, videos or more, the app developer often wants to use those images for promotional purposes. The question is whether you can enforce an individual’s release of rights in their name and likeness (an “image release”) for promotional purposes if the release was only “signed” by an individual who enters into a click-wrap agreement. Under New York law, the answer is probably yes. (Keep in mind that every state’s law in this matter may be different so that the New York choice of law and choice of forum provisions in the proposed release you provided to me are very important.)
New York provides, in Civil Rights Law Sections 50 and 51, acknowledgment and protection of the “right of privacy” – that is, an individual’s exclusive right to license his or her name and/or likeness (image) for commercial purposes. (One of the earliest cases was on behalf of a little girl whose portrait was put on the side of a milk carton without her parents’ consent – or payment. Obviously, technology and distribution have moved along since then.) Section 50 specifically requires any such consent to be in writing.
I could not find any cases that specifically address whether such “writing” has been confirmed by an individual entering into a click-wrap agreement that includes a waiver of the right of privacy. However, there are several cases that indicate that in New York, at least, click-wrap agreements generally are enforceable.
The reasoning in these cases does not seem limited to any particular type of contractual provision, so agreements should be enforceable with respect to a waiver of the New York right of privacy, as well.
Nevertheless, to better ensure that your “consumer” affirmatively waives his or her rights of privacy, I would suggest going one step farther. In addition to the “I Agree” button, it would be prudent also to require the photographed person to input his or her name into the agreement. Probably, a box inviting the user to “Enter Your Signature Here” would make it sufficiently clear that he or she is not just inputting a name, but is intending to be bound by a electronic signature. That way, you could better argue that the person did not just “Agree” but consented “in writing” as required by the applicable New York statute.
