How to Protect Your Public Image: The Right of Publicity

By Elspeth Crawford

The right of publicity is the inherent right of every human being to control the commercial use of his or her identity. If your image is used to sell something without your permission, that is a violation of your right of publicity. Some people, in particular famous people, have a bigger interest in enforcing this right than others. Rush Limbaugh, for example, is known for his conservative viewpoints on American politics, so he probably wouldn’t want to have his face put on an advertisement for a liberal talk show. But celebrities aren’t the only people entitled to protect their identities: everyone has a right to safeguard the way they’re viewed by the public large. On the flip side, if you have a business and are thinking about invoking a public figure as a way to promote yourself, knowing what lines you can and cannot cross is very useful.

Establishing a Violation of the Right of Publicity

If you or your business believes that some other person or company is trading on your name and reputation without your permission, or if you’re thinking of doing that yourself, know that there are a couple of things that must be shown before anyone has to pay up. Specifically, the person alleging that their right of publicity has been infringed must show that:

• The other person or company used their image without permission. This is usually pretty easy to prove, as all the person has to do is recite that they never gave permission for this particular kind of use. However, determining consent in the case of a celebrity’s image can be tricky, since many celebrities license out the use of their image to one or more groups. In this case, one should pay close attention to the text of the licensing agreement to see just what was allowed and what was not.
  
  
• The other person or company used their image in such a way that their image is clearly identifiable. Again, this requirement is usually easy to show. If, for example, you own a bakery and decide to promote yourself by slapping the image of a famous red-headed chef on your packaging, you would be violating that chef’s right of publicity. If, however, you just put an image of a non-descript chef who happened to have red hair on your packaging, you would not be stepping over any lines since the image would not, without more, be identifiable as that specific person.
  
  
• The other person or company’s use of their image is commercial in nature. That is, the person or company is using the image in the hopes of selling something, be it a product or a service. If, as above, you use the image of a famous chef to promote your bakery, you are making commercial use of the image and violating the chef’s right of publicity. However, if you just make a collage of your favorite celebrity chefs and hang it on your wall at home, you are making a personal rather than a commercial use of their images. Such a use is not punishable under the law.
  

Something to remember about cases for infringement of the right to publicity is that intent does not matter. If you use a celebrity’s image to promote your product without knowing that who that celebrity is are or that they’re famous, you’re still liable for damages if they come after you.

What kind of remedies are available for a violation of the right of publicity?

In order to recover damages under a right of publicity case, it is not necessary to establish any economic loss. If a celebrity’s image has been used commercially as described above, some amount of damages will be presumed. However, such an amount is likely to be nominal. To recover anything more, the person whose image has been misappropriated must establish that they lost money as the result of the misappropriation. This can be difficult to do, but at the least they will be able to obtain an injunction ordering you to stop using the image in commerce. In the worst case, those who misappropriate someone else’s image can be made to pay expensive punitive damages if they misappropriate it with full knowledge that what they were doing is against the law.

Is there a time limit on filing a case for a violation of the right of publicity?

The statute of limitations for violations of someone’s right of publicity varies between jurisdictions, but typically the limitations period is one or two years.

Continuation of the Right of Publicity After Death

Like many rights, the right of publicity can pass down from one person to another. For example, a certain movie star may be deceased, but their right of publicity persists and if wielded properly can still stop people from misappropriating their image. Whether the right gets passed down after death depends on whether the celebrity at issue exercised the right during their lifetime. If they did, the right passes down their family tree, but if they didn’t their image passes into the public domain and can be used by anyone.

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