[Yes: Three posts in one day. This is a record for me. But please read on...]
Here's a short story, with a question at the end. I'd welcome any and all comments, as I'm truly at a loss for figuring out how a licensor of copyrights in a photo believes it is free to ignore the right of publicity of the people featured in a photo.
THE STORY: A gay couple gets married in SF during the period 2 years ago where Mayor Newsom permitted marriage licenses to be issued to same sex couples. This attractive couple is photographed by a free-lance photographer while embracing on the steps of San Francisco's City Hall. The photo ends up in the collection of an on-line photo licensing company, and then ends up on the cover of a book having to do with the controversy of same sex marriage in another state (not having to do with California's same sex marriage battle). The gay couple discovers this for the first time when they see the book on the shelf at a local bookstore. They are surprised and upset to see their photo used in this way without their permission. They contact the publisher. The publisher agrees there's an issue, but thinks it's arguablely a 1st Amendment/news reporting-type use that does not require consent. The couple and publisher agree to disagree and, let's assume, they settle their dispute.
Now the couple's concern turns to the on-line photo licensing company that sells licenses for these sorts of photos. They don't like the idea that this company can continue to sell their images in a photo without first getting their consent. They want to know if they have a right to stop this activity.
The right of publicity in California (Cal. Civ. Code § 3344) states that "Any person who knowingly uses another's ... photograph ... in a manner on or in products, merchandise or goods, or for purposes of advertising or selling ... products, merchandies, goods or services, without such person's prior consent ... shall be liable for any damages sustained by the person..." Here, it seems pretty clear cut that a "person" (the photo licensor) is "knowingly" using "another's" (the couple's) "photograph" "on or in [a] product" (a photo license) or "for purposes of advertising ... [a] product" (the license for the photo) or "service" (licensing the photo) without the person's (the couple's) "consent". That sounds like a right of publicity problem, right? Moreover, while the right of publicity includes certain important exceptions for things like news or public affairs, sports broadcasts, or political campaigns (§3344(d)), and applies special rules if the photo is used in an employment context (§3344(c)), there is no exception for the type of use that the photo licensor is making in this case, right?
Nevertheless, let's assume that the photo licensing company takes the position that its business is only about licensing the copyright in the photo, and thus does not in any way implicate the right of publicity. It takes this stance and refuses to acknowledge any problems under the right of publicity. Of course, if it did acknowledge such problems, its business model might be in jeopardy.
MY QUESTION: under what theory does the photo licensor believes it is not implicating the right of publicity?
I've bounced this off a couple of other people who I trust, and nobody has a concrete answer. I would welcome comments that would push back on my reasoning. In other words, what's the argument for allowing the company that sells copyright licenses to photos of people to remain exempt from California's right of publicity laws intended to protect those people from commercial use of their image without their consent?