Before using a person's image for financial or commercial benefit, know what Right of Publicity is and how it can affect your business.
Do you use the names, pictures or common taglines coined by celebrities, socialites or random passerby’s in your website, blog or advertising materials?
If the answer is yes, like most businesses, advertisement professionals and writers/bloggers, then one thing to make sure to keep in mind is the law’s interest in protecting an individual’s Right of Publicity.
What is the Right of Publicity? Essentially, it is a person’s right to control the use of their identity for somebody else’s financial or commercial benefit.
The “financial or commercial benefit” factor is important because if the image does not damaged their prospects of using it for commercial gain, than the person can only recover “emotional distress” damages, which is difficult to prove.
Various states have enacted statutes that recognize the Right of Publicity (e.g. New York, California, Illinois, Florida, etc.), while a majority of states who have not enacted statutes do recognize the common law right. New York, which was the first state to enact such a statute, makes it a misdemeanor for a person, firm or corporation to use the name, voice or picture of any living person for advertising purposes, or for the purposes of trade without having first obtained the written consent of that person.
In the case of a minor, the parent(s) or guardian(s) must give consent. See NY CLS Civ R § 50. What is important to note about New York law, and should be a consideration in any state in which you conduct business, is that the law applies to any person (not just celebrities), so long as their image is being used for commercial gain by another.
Also, some states, such as California, allow for a right of publicity claim to be brought even when the person whose identity was used is deceased. In such scenarios, the deceased’s estate can bring forth a claim.
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How You Can Protect Yourself from Being Sued
Last year, Katherine Heigl made headlines when she instituted a $6 million lawsuit against the drugstore chain, Duane Reade, when they tweeted, "Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC's favorite drugstore” and posted a picture of Heigl carrying the chain’s shopping bags.
Image via Marketing Land
Although the tweet seems innocent enough and the picture used was an unaltered one, Heigl invoked the New York law discussed above, and claimed Duane Reade used her image for the purpose of commercial gain without her consent.
Eventually, both parties settled out of court for an undisclosed amount and Heigl withdrew her large lawsuit. Regardless of the final sum, it is safe to assume that Duane Reade will ask before using any names in future “ad-like” tweets.
Virgin Mobil Australia
In a different scenario, Alison Chang, a 15-year-old minor from Dallas was the subject of a picture which depicted her and a friend participating in their church-sponsored car wash. The picture of the two girls was posted on Flickr (a photo sharing service) by Justin Ho-Wee Wong, the photographer and Alison’s church youth counselor.
Virgin Mobile Australia obtained a license from Mr. Wong (the copyright owner) to use the picture, and after cropping out Alison’s friend and adding a caption that referenced Alison being they type of friend you would want to “dump,” Virgin used the image in a national billboard advertisement in Australia.
Although Mr. Wong was the rightful copyright owner of the picture and properly licensed away his rights as a photographer, he could not give away Alison’s right of publicity. A copyright is vested in who ever created the picture (typically, the photographer), but the actual subject of the picture/portrait/video has a right in his or her image which may give rise to a “right of publicity” claim if their image is used in a way that the subject did not consent to.
Image via CBS News
Since Virgin Mobile Australia had not obtained permission from Alison’s parents,’ they brought forth a suit against the company in Federal Court. Eventually, Chang v. Virgin Mobile Australia was dismissed due to lack of jurisdiction over Virgin Mobile Australia.
The important take-away in this case was that users of copyrighted materials still need to make sure to clear the publicity and privacy rights of any works containing human subjects (celebrity and non-celebrity, alike) before using them in a commercial manner.
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Jewel Food Stores
Even congratulating celebrities if done wrong can result in a right of publicity lawsuit. Jewel Food Stores was sued by Michael Jordan for right of publicity when the food chain ran an advertisement in Sports Illustrated in which Jewel congratulated Michael Jordan’s induction into the Basketball Hall of Fame and used a picture of his famous shoes.
The advertisement featured Jewel’s trademark and a used a play on its slogan to congratulate Michael Jordan. There, the Seventh Circuit stated that while the advertisement had a celebratory theme, it also contained an obvious commercial function that enhanced the store’s brand in the mind of consumers.
Image via Bogspot
The lesson learned: innocent uses may give rise to a claim if consumers could interpret that the person whose image you are using endorses you or your product.
While the scope of right of publicity seems daunting, not everything is prohibited. Using a person’s identity for news reporting (which bloggers can take advantage of), art, literature, parody, satire, and history are typically “safe” uses often referred to as a “First Amendment privilege.” The privilege allows the use of one’s name or likeness in matters of legitimate public concern, not of a commercial purpose.
In the end, when using a person’s image in any form of “commercial” propaganda, the best policy is to always receive the consent of the person whose image you would like to use. Depending on the state, the consent might have to be in writing, but it is always a good practice to keep such orders documented to prevent any confusion.
Remember: It is better to ask permission than to seek a potentially costly forgiveness.