In general, an individual has the exclusive right to license the use of their identity for commercial purposes. If another individual or company uses a person’s likeness, name, or other recognizable aspects of their identity without their permission, they may be violating their rights.
It is important to be aware that only about half of states recognize the right of publicity. In many of these states, this right is found in statutes governing the right to privacy or under laws prohibiting unfair competition, which involves an attempt to pass off a product as being endorsed by a specific individual.
These types of issues may also arise in invasion of privacy cases. Invasion of privacy involves intrusion into another individual’s life without their consent.
How Can I Control the Use of My Image or Likeness?
An individual may exercise control over the use of their image or likeness. With the accessibility to the Internet, this has become a more common issue.
For example, if an individual’s photo is taken, they may be able to prevent it from being used commercially on the Internet. Likeness rights, which may also be referred to as the right of publicity, allow individuals to regulate the commercial use of their identities, including their:
- Name;
- Appearance;
- Likeness; or
- Other unmistakeable identifiers.
Rights governing an individual’s image are generally divided into two categories, including:
- 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 to, 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.
One frequently cited justification for this is the concept of natural rights and the idea that each individual should have the right to control if and how their right to publicity is commercialized by a third party.
In many cases, the purpose for this type of commercialization is to help accelerate sales or visibility for a product or service.
What Are Three Grounds for Stopping the Use of Your Likeness?
There are three main ways for an individual to prevent a website from the unlawful use of their image, including:
- Invasion of privacy: An invasion of privacy may occur if a website provides a false or highly insulting portrayal of an individual. In addition, an invasion of privacy may occur if the photograph was taken using some manner that violated that individual’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 an individual’s likeness and can include style of voice performance and name; and
- 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 simply unfavorable is insufficient to establish a slander action. Rather, the image must falsely portray that individual and encourage other individuals in the community to think poorly of that individual.
The majority of states allow an individual to sue for likeness copyright when another individual or entity unlawfully uses their name, likeness, or other personal characteristics without their permission for an exploitative purpose. Individuals typically encounter difficulties in this area when they utilize another individual’s name or photograph in a commercial situation, for example, advertising or other promotional activities.
What States Recognize the Right to Publicity Law?
The right of publicity is a state law issue. There are some states that have passed statutes regulating this right, including:
- California;
- Florida;
- Kentucky;
- Massachusetts;
- Nebraska;
- Nevada;
- New York;
- Oklahoma;
- Rhode Island;
- Tennessee;
- Texas;
- Utah;
- Virginia; and
- Wisconsin.
Is It Possible to Protect the Use of Any Part of My Identity through Federal Law?
If an individual is able to trademark a certain aspect of their identity, it can be protected under federal laws. The advantage of a trademark is that the individual’s right of publicity for the trademarked aspect of their persona is protected no matter what state they are in.
What Should I Do if Someone Uses My Likeness Commercially?
Only humans and not businesses or organizations have rights to publicity and privacy that may be violated by the misuse of their name or likeness. A celebrity, however, cannot sue in certain jurisdictions for misappropriation of name and likeness because they have no private interest to defend.
At the same time, a non-celebrity cannot make a claim for breach of the right of publicity based on the theory that their personalities have no commercial value. An increasing trend, however, is to allow both celebrities and non-celebrities to sue for misappropriation and infringement of the right of publicity, so long as they can demonstrate the applicable type of harm.
An individual cannot infringe on the privacy of a dead person. Therefore, an individual 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 died.
In many jurisdictions, however, the right to publicity survives death. Therefore, an individual may be sued for breaching a deceased person’s publicity rights.
This most commonly arises in relation to dead celebrities. A plaintiff who brings a misappropriation or right of publicity claim must demonstrate that the defendant used legally protected aspects of their identity.
Typically, this involves proving that the defendant used the plaintiff’s name or likeness. Regarding the use of a name, there is not a requirement that the full or formal name be used but simply a name or title that identifies the plaintiff.
For example, a well-known moniker will be sufficient. It is important to note that consent is an absolute defense to a legal claim for misappropriation of an individual’s:
- Name;
- Likeness; or
- Infringement of the right of publicity.
If an individual is gathering information from or photographing another individual, it is best to obtain permission to use the material on any online platform. Whenever possible, it is best to obtain written permission.
Should I Contact a Lawyer?
In many jurisdictions, the unauthorized use or appropriation of your name or likeness by another individual or company means that you may be able to bring a lawsuit against the unauthorized user to stop them and possibly recover money damages. If you believe that your identity has been wrongfully used without your permission, you should consult with an entertainment lawyer.
Your lawyer can advise you regarding your rights and whether you would be able to take any action against the individual or company that is using your identity without your permission. As noted above, the laws regarding these types of issues may vary by jurisdiction, profession, and use of the material.
Because of this, it is very important to have the assistance of an attorney who can ensure your rights are protected under the laws of your state or federal laws, if applicable.
