Right of Publicity

Right of publicity, which is also known as personality rights, is a type of intellectual property recognized under state law that grants an individual the right to control the commercial use of his or her name, image, likeness, and other attributes of his or her identity.

In most states recognizing the right of publicity, the right of publicity is a property right, and under the right of publicity laws in some states, the right of publicity for an individual can survive the individual’s death and is enforceable by the deceased individual’s heirs, estate, or other authorized person or business entity. For example, under Florida law, a deceased person’s right of privacy is enforceable against unauthorized users of the deceased person’s name, image, and likeness for 40 years after his or her death.

In some states, the right of publicity is created and recognized by state statute, while in the remainder, the right of publicity is recognized under state common law, i.e., state case law, or the precedent of state court decisions. Rights and legal remedies related to violations of an individual’s right of publicity are often in addition to any rights and remedies pertaining to an invasion of privacy.

The following U.S. states have enacted statutes that grant individuals protection for their right of publicity:

• Alabama
• California
• Florida
• Hawaii
• Illinois
• Indiana
• Kentucky
• Massachusetts
• Nebraska
• Nevada
• New York
• Oklahoma
• Pennsylvania
• Rhode Island
• Tennessee
• Utah
• Virginia
• Washington
• Wisconsin

The following U.S. states recognize a person’s right of publicity under their state common law:

• Alabama
• California
• Connecticut
• Georgia
• Kentucky
• Michigan
• Minnesota
• Missouri
• New Jersey
• Ohio
• Texas
• Utah
• Wisconsin

Under Florida law, the publication, printing, display, or other public use of any person’s name, portrait, photograph, or other likeness for purposes of trade or for any commercial or advertising purpose, without the express written or oral consent to such use, is unlawful and prohibited.

Express written or oral consent to such use of a person’s name, portrait, photograph, or other likeness may only be given by: (i) the person; (ii) another person or business entity authorized in writing by such person to license the commercial use of his or her name or likeness; or (iii) if such person is deceased, any person or business entity authorized in writing to license the commercial use of the deceased person’s name or likeness, or if no person or business entity has been so authorized, then by any surviving spouse and/or any surviving child of the deceased person.

A person who suffers a violation of his or her right of publicity (or other person or business entity authorized to license such person’s name or likeness by contract or pursuant to the Florida right of publicity statute) may file a lawsuit against the unauthorized user of his or her name or likeness seeking damages and injunctive relief.

Damages that may be sought in litigation by a person whose right of publicity has been violated include damages for any loss or injury sustained by reason of such violation by an unauthorized person, including an amount which would have been a reasonable royalty for the use of the person’s name or likeness, and punitive or exemplary damages. In addition to the damages described above, enhanced damages of $1,000 per violation can be awarded to the person whose name or likeness has been used without authorization if such person is a member of the armed forces.

Under Florida law, a person’s right of publicity does not apply, and cannot be enforced, in connection with the publication, printing, display, or use of the person’s name or likeness in any news broadcast or telecast, newspaper, magazine, book, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest as long as such person’s name or likeness is not used for advertising purposes.

In addition, under Florida law, a person’s right of publicity does not apply, and cannot be enforced, in connection with any photograph of such person solely as a member of the public and where such person is not named in or in connection with the photograph’s use.

Other exceptions to the general enforceability of the protections provided by the right of publicity statutes and laws may apply in Florida and other states.

For more information concerning how to protect and enforce your right of publicity against unauthorized commercial users of your name, image, or likeness, please contact one of our attorneys.