The Right to Publicity
Individuals who are famous, prominent or otherwise well-known have an intellectual property right in the use of their name or likeness for commercial purposes. When their name or image is used without their permission to promote a product or service, they may be able to bring a lawsuit based on a violation of their right to publicity.
The right to publicity recognizes an individual's exclusive right to use or license his or her identity for commercial purposes and to prevent others from unfairly profiting off of another's identity. The right to publicity is a state right. Currently, roughly half of the states have publicity statutes or recognize the right at common law.
Some examples of the types of identities in which courts have found a right to publicity to exist include:
- Names, including nicknames and former names
- Likeness, including photos, portraits, paintings and look-alike models
- Characters created by performers
- Actual performances by performers
- Distinctive dress and entertainment styles
- Voices
Not all jurisdictions recognize an individual's right to publicity in the above-listed identities. It is important to consult an attorney in your state to determine whether the misappropriation of a specific identity is actionable in your jurisdiction.
Elements of a Right to Publicity Claim
While state laws differ on the requirements to bring a cause of action for violation of the right to publicity, generally a plaintiff will have to prove:
- A valid right to the identity at issue
- The defendant violated the plaintiff's right by appropriating his or her identity for commercial purposes without permission
- The unauthorized use caused the plaintiff injury
The plaintiff in a right to publicity case may be the person whose identity was misappropriated or an heir, assignee or licensee of the identity. However, there are variations in state law concerning who can be a plaintiff. For example, in some jurisdictions, the right to publicity may not survive death, stripping an heir of the right to bring a claim. In other jurisdictions, the right to publicity may only survive death if it was asserted during an individual's lifetime.
The remedies that may be available to plaintiffs in right to publicity cases include injunctive relief, damages, attorney fees and costs. Some jurisdictions also permit an award of punitive damages in certain circumstances.
Right to Privacy
In some states, the right to publicity is protected as part of their right to privacy laws. These laws seek to protect an individual's right to be left alone. The unauthorized appropriation of one's name or likeness is the privacy right most closely related to the right to publicity. Like the right to publicity, the right to privacy protects an individual's interest in the exclusive use of his or her own identity and prohibits others from appropriating that identity for commercial or personal reasons without permission. Some states may require the unauthorized use be for a commercial purpose in order to be legally actionable.
To learn more your state's laws on the right to publicity or the right to privacy, contact a knowledgeable attorney in your area today.
Learn More: Reasons to Contact an Intellectual Property Attorney
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