An individual can exercise control over the usage of their picture. With the expansion and general availability of access to the Internet, this has become an increasingly crucial issue. For example, if someone’s photograph is taken, they may be able to prevent it from being used for commercial purposes on the Internet.
An individual can exercise control over the usage of their picture. With the expansion and general availability of access to the Internet, this has become an increasingly crucial issue. For example, if someone’s photograph is taken, they may be able to prevent it from being used for commercial purposes on the Internet.
Likeness rights, sometimes known as the right of publicity, allow an individual to regulate the commercial use of their identities, such as their name, appearance, likeness, or other unmistakable identifiers.
Because they are often regarded as property rights rather than personal rights, the validity of personality rights of publicity may, to varying degrees, survive the death of the individual, depending on the jurisdiction.
Image rights are generally divided into two categories:
- The right of publicity, which is the right to prevent one’s image and likeness from being commercially exploited without permission or contractual compensation and is similar (but not identical) to the use of a trademark; and
- The right to privacy, which is the right to be left alone and not have one’s personality represented publicly without permission.
Publicity rights are subject to the tort of passing off in common law nations. This right has been significantly expanded by US jurisprudence.
A frequently cited policy justification for this doctrine is the concept of natural rights and the idea that every individual should have the right to control how their right to publicity is commercialized by a third party, if at all.
The purpose for engaging in such commercialization is often, but not always, to help accelerate sales or visibility for a product or service, which usually amounts to some type of commercial discourse (which in turn receives the lowest level of judicial scrutiny).
Three Grounds for Stopping the Use of Your Likeness
These are the three most popular ways for someone to prevent a website from unlawful use of likeness of their image:
- Invasion of Privacy: An invasion of privacy may occur if a website provides a false or highly insulting portrayal of someone. In addition, an invasion of privacy may occur if the photograph was taken using some manner that violated that person’s reasonable expectation of privacy, such as cameras that are hidden, wiretapping, and making use of infrared or telephoto lenses.
- Right to Publicity: If an individual’s image is utilized for commercial purposes, that usage may violate their right to publicity. This right only applies in a business context, and an individual’s image must be used to promote things or to imply that they endorse the product. In addition, the public must be able to recognize that person’s image. This right goes beyond a person’s likeness and can include style of voice performance and name.
- Defamation: If the photograph produces a misleading impression and harms an individual’s reputation, a claim for defamation may be made. A photograph that is just unfavorable is insufficient to establish a slander action. Rather, the image must falsely portray that person and encourage people in the community to think poorly of the individual.
Most states allow you to sue if you for likeness copyright when someone unlawfully uses your name, likeness, or other personal characteristics without permission for an exploitative purpose.
People usually get into difficulties in this area when they utilize another person’s name or photograph in a commercial situation, such as advertising or other promotional activities.
However, several courts additionally forbid using another person’s identity for the user’s personal gain, whether the objective is strictly commercial or not. Courts and legal observers sometimes mix up misappropriation with the right of publicity cases due to their similarities.
What Should I Do If Someone Uses My Likeness Commercially?
Only humans, not businesses or other organizations, have rights to publicity and privacy that can be violated by name or likeness misuse. Thus, unless a human being has transferred their rights to an organization, only people can claim for wrongful use of name or likeness.
Companies may sue you for trademark infringement and unfair competition if you use their brand names commercially.
Celebrities cannot sue in some places for misappropriation of name and likeness (since they have no private interest to defend). At the same time, non-celebrities cannot claim for breach of the right of publicity (on the theory that their personalities have no commercial value).
However, an increasing trend is to allow both celebrities and non-celebrities to sue for misappropriation and infringement of the right of publicity, as long as they can demonstrate the applicable type of harm.
You cannot infringe the privacy of a dead person; hence, you cannot be sued for violation of personal rights or misappropriation of a dead person’s name or likeness unless the misappropriation occurred before the person in issue died.
However, in many places, the right to publicity survives death. Therefore, you might be sued for breaching a deceased person’s publicity rights. This is most likely to happen with dead celebrities.
A plaintiff bringing a misappropriation or right of publicity claim must demonstrate that the defendant used legally protected aspects of their identity. This usually entails proving that the defendant used the plaintiff’s name or likeness.
In terms of the usage of a name, it does not have to be a full or formal name, simply something that identifies the plaintiff. A well-known moniker will suffice.
Consent is an absolute defense to a legal claim for misappropriation of a person’s name, likeness, or infringement of the right of publicity. When gathering information from or photographing an individual, it is best to obtain permission to use the material on your website, blog, or another online platform. Whenever feasible, obtain written permission.
A model release form can be used while photographing or filming someone. The American Society of Media Photographers (model release for adults, model release for minor kids, reduced model release, and pocket release) and the New York Institute of Photography both have examples of model releases.
Additional samples can be found by conducting a simple Internet search for “model release.” It should be noted that you can select from different model releases of varying complexity. Unless you intend to use someone’s name or likeness in advertising or clearly commercial usage, you may be better off adopting one of the simpler forms.
All of these sample releases must be tailored to your specific circumstances and goals. You should not use someone else’s photograph for a purpose or in a medium that is not covered by the release, as this renders the release ineffective.
Obtaining an interview release form is also a good practice when interviewing someone (with or without taking images). This release can protect you from allegations of publication of private details, misappropriation, and right of publicity.
If, on the other hand, you obtain photographs for use on your website or blog from a publicly available source on the Internet, obtaining the consent of the people depicted in those photographs may be more difficult, especially if they are celebrities.
In close circumstances, where you are unsure whether your proposed use is commercial or otherwise exploitative or if your use falls under the protection for “news and commentary” (see below), you should try to acquire consent.
You should consider utilizing a different image if you cannot obtain it. When using images you did not take, you must consider copyright legislation and name or likeness issues.
Obtaining permission from the photograph’s subject only prevents a claim of misappropriation or infringement of the right of publicity. You must also obtain permission from the photographer to use the photograph (or whoever owns the copyright).
Do I Need a Lawyer If Someone Has Used a Picture of Me without My Permission?
When considering whether you can prevent someone from utilizing your picture or likeness, there are various complex aspects to consider.
An experienced trademark lawyer can assist you in determining if someone has invaded your privacy, violated your right to publicity, or defamed you.
Furthermore, the rules governing these issues vary from state to state. If you need to sue someone for utilizing your image, a local lawyer will be aware of the laws in your area and the appropriate procedures.
