Understanding the right of publicity is essential for any business, creator, or marketer looking to use an individual’s identity for commercial purposes. In the modern digital landscape, using someone’s name, image, or likeness without permission can lead to significant legal complications. This guide provides a straightforward path to understanding what these rights are and how you can verify them to ensure your projects remain compliant.
What Is the Right of Publicity?
The right of publicity is a legal doctrine that allows individuals to control the commercial use of their identity. This includes their name, image, likeness, and sometimes even their voice or signature. Unlike many other forms of intellectual property, the right of publicity is primarily governed by state laws rather than federal law in the United States.
While the right of privacy protects an individual’s right to be left alone, the right of publicity focuses on the commercial value of a person’s persona. It ensures that if someone’s identity is used to sell a product or promote a brand, that person has the right to authorize the use and receive compensation.
The Scope of Identity
It is important to realize that the right of publicity extends beyond just a photograph. Courts have historically protected various aspects of an individual’s identity, including:
- Name: Both real names and well-known stage names or nicknames.
- Likeness: Drawings, caricatures, or even digital avatars that clearly represent a specific person.
- Voice: Distinctive vocal characteristics that are recognizable to the public.
- Catchphrases: Unique phrases or slogans that are inextricably linked to a specific celebrity or public figure.
Why Verification Is Crucial for Compliance
Verifying the right of publicity is a critical step in the risk management process for any commercial endeavor. Failing to do so can result in costly lawsuits, injunctions that stop your campaign in its tracks, and damage to your brand’s reputation. In recent years, the rise of Name, Image, and Likeness (NIL) deals for athletes has further highlighted the importance of these protections.
When you use an individual’s identity for profit, you are essentially entering a commercial partnership. Without a formal agreement or a thorough verification of rights, you are operating without a legal safety net. Verification ensures that all parties are protected and that the usage aligns with the individual’s personal brand and legal requirements.
How to Verify Right of Publicity Rights
Conducting a thorough check involves several steps. Because laws vary significantly by location, you must be diligent in your research before proceeding with any commercial project.
1. Identify the Individuals Involved
The first step is to list every individual whose identity might be recognizable in your content. This includes not just the main subjects of a photo or video, but also people in the background who could be identified by the public. If a person is recognizable, their right of publicity is likely at play.
2. Determine the Relevant Jurisdiction
Since right of publicity laws are state-specific, you need to know which state’s laws apply. Generally, the law of the state where the individual resides (their domicile) governs their publicity rights. For deceased individuals, you must look at the laws of the state where they lived at the time of their death.
3. Check for Existing Licenses and Releases
Before assuming you need to start from scratch, check if the individual has already granted rights through a third party. For example, if you are using a stock photo, the agency may already have a signed model release on file. However, you must read the fine print of these licenses to ensure they cover your specific commercial use.
4. Research Post-Mortem Rights
In many jurisdictions, the right of publicity does not end when a person passes away. Some states, such as California and Tennessee, provide protection for a person’s identity for decades after their death. These are known as post-mortem rights. If you are using the image of a deceased public figure, you must verify if their estate or heirs still control those rights.
Common Scenarios Requiring Verification
There are several common situations where businesses frequently encounter right of publicity issues. Being aware of these can help you identify when you need to pause and verify rights.
Social Media and Influencer Marketing
Sharing a photo of a celebrity using your product might seem like a great marketing move, but if they haven’t authorized the post, it could be a violation of their rights. Even “re-gramming” or retweeting commercial content can sometimes cross the line into unauthorized endorsement.
Merchandising and Apparel
Printing a person’s face on a t-shirt or using their name on a poster is a clear commercial use. This almost always requires a direct license from the individual or their estate. This applies to both physical goods and digital products like NFTs.
Artificial Intelligence and Deepfakes
The emergence of AI-generated content has created new challenges. Using AI to mimic a celebrity’s voice or create a digital likeness for an advertisement still falls under right of publicity laws. Verification in the age of AI requires ensuring that any training data or generated output has the necessary permissions.
Best Practices for Legal Compliance
To stay protected, your organization should adopt a standardized approach to verifying and securing publicity rights. Following these best practices will help minimize legal exposure.
- Always Get Written Consent: Never rely on a verbal agreement. A written release or license agreement should clearly outline the scope of use, duration, and compensation.
- Keep Detailed Records: Maintain a database of all releases and contracts. If a legal question arises years later, you will need to produce documentation quickly.
- Use Professional Stock Services: When using images of people you don’t know, stick to reputable stock photo sites that guarantee model releases for commercial use.
- Consult Legal Counsel: If you are working on a high-stakes campaign involving a major public figure, always have an attorney review your contracts and verification steps.
Exceptions to the Right of Publicity
It is also helpful to understand that the right of publicity is not absolute. There are certain situations where using a person’s identity is permitted without their direct consent, primarily based on First Amendment protections.
News and Public Interest
Journalists and news organizations can generally use a person’s name or image to report on matters of public interest. This is why news outlets can show footage of celebrities or politicians without needing a signed release for every broadcast.
Artistic and Transformative Works
In some cases, if an artist uses a person’s likeness in a way that is highly creative or “transformative,” it may be protected as free speech. However, the line between an artistic work and a commercial product is often thin, and courts decide these cases on an individual basis.
Conclusion
Verifying the right of publicity is a fundamental part of responsible commercial activity. By taking the time to identify individuals, research local laws, and secure proper documentation, you protect your business from legal risks and show respect for the individuals whose identities contribute to your success. Diligence in this area is not just about avoiding a lawsuit; it is about building a professional and ethical brand. For more information on navigating legal requirements in the digital age, explore our other articles on business compliance and intellectual property basics.