Last week, I gave an overview presentation on legal issues of online marketing to the members of the San Francisco Fashion & Merchant Alliance. The presentation covered a variety of topics, but the one that seemed to inspire the most questions was “rights of publicity.” I’m hoping this blog will help clarify this topic. As with all Law On The Runway posts, this is just general information. Please contact a lawyer if you’d like advice on your unique situation.
What Are Rights of Publicity?
The rights of publicity are the rights of a person to control how their image or “likeness” is used commercially. Their “likeness” describes special characteristics of a person, that would make the person uniquely identifiable. For example of a collection of characteristics that defined a person, lets look at one famous rights of publicity case involving Vanna White. Samsung created an advertisement with a robot dressed in a sequined gown, with a blonde wig, standing in front of a Wheel of Fortune clue board. This robot was seen by the court as invoking Vanna White’s image, without her permission. Another case involved Bette Midler, and someone impersonating her voice in a Ford automobiles commercial. Even though it wasn’t Bette Midler’s voice, because the voice artist was purposefully attempting to make the voice sound like Bette Midler, this was a violation of Bette Midler’s ability to control her image for commercial use. In both these cases, the attempts of the companies to invoke the image of the celebrities in these advertisements were seen as violating the rights of publicity of Vanna White and Better Midler.
If a company is trying to get potential customers to recognize a person within an advertisement or promotional piece, to the benefit of the commercial company, the company is likely trading on that person’s rights of publicity.
There doesn’t need to be a formal advertisement campaign for a claim to publicity rights. Posting photos of a person on Facebook or Instagram under a fashion company account can trigger these rights. For example, Burberry recently settled with the estate of Humphrey Bogart, after posting a photo of Bogart wearing a Burberry trench on the Burberry Facebook timeline, without permission. You can read more on these lawsuits here in a Law 360 article.
Who Has Rights of Publicity?
Rights of Publicity tend to be discussed in the context of celebrities or other well-known professionals. This is because businesses are likely to use popular celebrities within marketing or advertising campaigns. However, everyone is entitled to control how their image is used, and have rights in preventing it from being used for commercial purposes.
Everyone has these rights until death, and the type of protection varies based on the state in which is your primary residence is located. Many states have also extended these rights past death, to be continued with the estate. For example, California allows this right to be passed on or transferred until 70 years after death. In comparison, New York restricts its rights of publicity statute to “any living person.”
What Should You Do If You Want to Use a Photo with a Person In It?
First ask for permission from the photographer. Second get a release from the individual in the photo. Sometimes the photographer will get the model’s or celebrity’s publicity rights upfront. Let them know what you specifically intend to do with the photo to see if the release covers the goals. Some photo releases may give the photographer the right to sell the photo for use in traditional advertisements, but not for public service announcements, political campaigns, or awareness advocacy promotions. For example, a non-profit seeking to promote the awareness of a disease may need special permissions not included in a generic release form since the promotional campaign may indirectly suggest to some viewers that the model suffers from the disease.
When Can You Use a Photo or Other Identifiers of Person Without Permission?
There are exceptions for when you can use the image of a person or the likeness of a person without permission, and these exceptions stem from the 1st Amendment’s right to free speech. The rights of publicity only prevent from someone’s image or likeness being used when the image is promoting a product or service, or when the person’s image or likeness is being traded for financial gain. If the image is being used to support primary goals of news reporting, parody, or educational purposes, often the use of the image is allowed. Assessing if the image can be used in this way is complicated and sometimes risky, making it a judgement that should be left to an attorney.
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