Reputation and Publicity

Many states recognize that all living people have a right of publicity regardless of their level of celebrity. Yet, under common law, some states limit publicity claims only to celebrities and others whose identities have commercial value.

Usually, celebrities and other well-known people are most likely to enforce their rights because their identities’ monetary value is high. Many times, they have procedures in place to resolve violations of their rights. Businesses involved in advertising campaigns or selling products with someone’s identity should consult an attorney and obtain the individual’s permission if necessary.

Publicity law is litigated often and is a rapidly evolving legal area. It is also related to the right of privacy, trademarks, unfair competition, and federal copyright law in some cases. Using a person’s identity or persona for commercial purposes can result in courts awarding significant monetary damages for violating common law rights and rights under state statutes.

The protected parts of one’s identity can include an individual’s:

• Name
• Appearance
• Voice

Many times, the right of publicity is confused with the right of privacy. These laws were both developed through “common law,” which is the law created by judges. In the broadest terms, a right of publicity is the right to monetize one’s image. In contrast, the right to privacy protects the disclosure of a person’s private facts or against the portrayal of a person in a “false light.”

While many states recognize the differences between the two rights, some courts continue to combine them as one, which can be confusing. In New York, for example, the right of publicity remains part of New York’s right of privacy statute. Combining these rights has created a conflicting body of common law regarding what private or public rights are protected.

Depending on the state, remedies for right of publicity violations can include:

• Injunctive relief (stopping the use of the identity at issue)
• Monetary damages
• An award of the infringer’s profits from using the identity
• Punitive damages (money damages to publish the other side’s willful use)

Right of publicity laws are fundamental in New York and California since many celebrities are based there, and their likeness has measurable monetary value.

New York’s Legal Framework

New York recognizes the right of publicity only as part of the New York Civil Rights Law under a theory of the right of privacy (N.Y. Civ. Rights Law §§ 50 and 51).

However, New York has now joined California in adopting legislation that gives a “Right to Publicity” for deceased individuals to protect against the exploitation of their characteristics that have commercial value, such as their name, picture, voice, or signature after their death. The legislation also provides new penalties for publishing “deep fakes,” which are computer-generated media to trick the public that people were involved in specific events appearing in videos.

California’s Legal Framework

The right of publicity in California protect a person’s:

• Name
• Voice
• Signature
• Photograph
• Likeness

Courts recognize certain key defenses, including First Amendment-based rights. Individuals accused of violating rights of publicity can defend the statements because the particular uses of likeness are not considered a commercial use. Usually, the First Amendment right to free speech protects some opinions and parodies under this category. These defenses are also recognized broadly in intellectual property law.

For example, some types of publications are considered protected under the First Amendment to the U.S. Constitution and may not result in right of publicity liability:

• Political campaigns
• News
• “Public Affairs,” which are events that are not necessarily “newsworthy” but are of interest to the public anyway
• Sports broadcasting

However, it is vital to know that no case is the same because the laws of each state are different, and the facts involved in a case vary greatly. Nardiello Law can advise you on the best strategy to defend against claims of rights of publicity violations.

Nardiello Law is well-equipped to help clients avoid publicity rights liability by providing counseling and advertising clearance before advertisements or commercials are published or merchandise is sold. If you think you may have a right of publicity issue, please contact us for a consultation. You can also read more about our related services on our Business and Commercial Litigation page or Litigation, our Intellectual Property Litigation page.