Making Money from a Person’s Likeness: Guide to Rights of Publicity in the U.S.

Rights of publicity, also known as rights against appropriation, refer to the legal right of individuals to control and profit from the commercial use of their name, image, likeness, and other aspects of their identity.

Rooted in privacy and property law, this right aims to protect individuals from unauthorized commercial exploitation and misappropriation of their identity for the financial gain of others. For example, you can’t take a photo of someone to use in an ad campaign unless the person agrees to “release” these rights (often for a price).

Athletes, musicians, actors, and even social media influencers have asserted their rights to control the commercial use of their identity in various contexts, including advertising, merchandising, and endorsements.

Rights of publicity are primarily governed by state laws, which vary in scope and level of protection. Here we explain the basics of the rights of publicity, but check your state’s laws for more specifics.

What are the key elements of rights of publicity laws?

1. Commercial Use: Rights of publicity generally apply to commercial or exploitative uses of an individual’s identity for advertising, merchandising, or other commercial purposes. Non-commercial or expressive uses, such as news reporting, commentary, or artistic expression, may be protected under the First Amendment’s freedom of speech and expression.

2. Likeness: The right of publicity typically covers an individual’s likeness, which includes their physical appearance, image, facial features, voice, name, signature, and other recognizable attributes. This can extend to photographs, drawings, paintings, sculptures, and even digital representations of the individual.

3. Duration: Depending on the state, rights of publicity can endure beyond an individual’s lifetime, allowing heirs and estates to enforce and benefit from these rights after the individual’s death. However, the duration of post-mortem rights varies depending on state law, with some states providing indefinite protection and others imposing time limits.

What are some exceptions to rights of publicity?

Like any legal doctrine, rights of publicity are subject to exceptions and limitations. While rights of publicity provide important protections for individuals’ personal identity, they also raise complex legal questions and potential conflicts with other rights, such as freedom of speech, expression, and the public’s interest in access to information. For example, the use of an individual’s likeness may be permissible under certain circumstances, such as in works of news reporting, commentary, satire, parody, or transformative art.

What are the potential consequences of violating someone’s rights of publicity?

Individuals whose rights of publicity have been violated may seek various remedies, including injunctive relief to stop unauthorized use, monetary damages for economic harm, and sometimes punitive damages for intentional or willful violations.

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