In the majority of states, an individual has a right to control the commercial use of their name, likeness, or other aspects of identity. This is known as the right of publicity, which is based on traditional notions of privacy. While this right belongs to anyone, the right of publicity typically arises when a business uses the name or likeness of a famous person, such as a movie star, a singer, or an athlete. If a business uses a person’s name or likeness without their consent, that person can bring a misappropriation claim against the business. A business also cannot indicate without authorization that a certain celebrity has endorsed their product or service.
Before appearing in an ad or endorsement, a celebrity will need to sign a consent agreement, authorizing the business to use their image for a fee. The right of publicity is the reason for these agreements.
Generally, the right of publicity applies only to the sale of products or services. It does not cover non-commercial uses of a name or image, such as photos or video clips that accompany newspaper articles or newscasts. (Public officials thus may face greater obstacles in establishing misappropriation.) Some states have enacted statutes that formally provide for a right of publicity. Courts in other states have issued decisions recognizing a right of publicity under the common law. Federal law does not yet protect the right of publicity.
Remedies for Misappropriation of Publicity Rights
Often, a plaintiff bringing a misappropriation claim does not need to show that they suffered economic damages or that the defendant received profits from the misappropriation. States that provide a statutory right of publicity allow a plaintiff to recover statutory damages, which rise from a fixed minimum amount. If a state does not provide for statutory damages, though, the plaintiff must prove that they have sustained actual losses to recover damages.
California and some other states allow courts to award punitive damages in addition to compensatory damages. Getting punitive damages usually requires proving knowledge or intent by the defendant, although state laws vary. For example, continuing to use the name or image of the plaintiff after being notified that the use is unauthorized may open the door to punitive damages.
An injunction is a court order that requires a defendant to do or stop doing something.
In addition, a plaintiff may receive a preliminary injunction and a permanent injunction. A court may issue an injunction in a misappropriation case when monetary damages cannot fully compensate for the harm to the plaintiff’s interest in their identity. Sometimes an injunction applies nationwide, but other injunctions may be fashioned more narrowly to avoid conflicts with laws in other states, since the scope of the right varies.
Publicity Rights Beyond Death
The majority of states provide that the right of publicity does not survive death. However, some states allow the right of publicity to survive death. In other words, the survivors of a celebrity or another person whose name or likeness was used without authorization can sue for misappropriation. One of these states is California, which has enacted a law specifically providing a postmortem right of publicity. This means that the estate of a deceased celebrity who lived in the Los Angeles area, for example, can control the use of their name and image.