Guide to the Laws related to Marketing and Merchandising in the U.S.

This is part of our general Guide to Laws for Business Owners and Entrepreneurs.

Many areas of law may apply when marketing, advertising, or selling goods or services of any kind. In particular, before a business wants to use someone else’s name, image, voice, or other likeness, they need to be aware of at least two areas of law: right of publicity, and trademark. Also, marketing certain products to children is either banned entirely or heavily restricted.

1. Using Someone’s Image or Name in Marketing

Is it OK to use someone’s image or name in selling a product?

If you use someone else’s image or name in connection with selling a product, you may face an issue with their “right of publicity.” The right of publicity is generally a restriction on making money off the “likeness” of a person without their consent. This is also called “right against appropriation” or “right against commercialization.”

“Likeness” can mean image, voice, name, signature, or anything else that would identify a particular person. Even an imitation or simulation of such likeness can be considered a likeness.¹Midler v Ford Motor Co. 849 F 2d 460 (9th Cir. 1988)

Everyone, not just celebrities, has a right of publicity (although celebrities generally can obtain more money compensation if they pursue legal action).

Specifics of this right varies by state. For example, California provides a right of publicity for 70 years after someone’s death. New York does not provide any publicity rights after death. Thus, Marilyn Monroe, who was legally a resident of New York when she died, no longer has publicity rights (but copyright and trademark may still apply).

To get the rights to a person’s likeness, you will need the person to sign a “release” or “license” of their publicity rights.

2. Marketing & Trademark

The other major consideration for marketing or merchandising is not to infringe on another’s trademark rights. Trademark infringement can occur with actual use of another’s trademarked name or logo (or other mark) to sell your product. But it can also be considered infringement if you even have an association or implied association or affiliation with a trademarked brand. For example, if you are in the fashion industry and you sponsor a certain brand that does not have rights related to fashion.

See more at our Guide to Trademark Law.

3. Marketing to Children

Many products are regulated as to whether they can be marketed to children or not. This includes tobacco, alcohol, and marijuana, to name a few.

4. Online marketing

As much marketing and advertising is done online now, you will need to know about the general internet laws.

5. False advertising

There is a general restriction on “false advertising.” See our Guide to Consumer Laws for more.

6. Endorsements

If someone is paid to endorse a product or even gets free stuff in exchange for endorsing it, this must be disclosed. See our Guide to Endorsements and Reviews