Intellectual Property Law

Right of Publicity

What is right of publicity?

The right of publicity is the right to control the commercial exploitation of your name, likeness, voice, and other identifiable aspects of your identity (commonly referred to by the acronym “NIL”, which means ones’ name, image, and likeness). For example, suppose you want to sell items bearing the image of a famous entertainer or athlete, or just the guy that lives across the street. In that case, you need to get a license from them first, and if they grant you that license, which they are not obligated to do, you will probably have to pay them a hefty fee (maybe not so much for the guy across the street, but you still need to get his consent).

There is no federal law recognizing the right of publicity. Rather it is addressed at the state level, with significant variation on a state-by-state basis. In some states, the right of publicity is only applicable to celebrities, whereas other states have applied this right to any individual. Additionally, some states, like California, recognize that the right to publicity can survive an individual’s death.

More info on the Right of Publicity.

Are there limits to the Right of Publicity?

Yes, there are. Most commonly, the use of a person’s name, likeness, or persona for news, information, or public interest purposes is not a violation of the right of publicity. For this reason, for example, a professional baseball player cannot prevent the use of a photo of him going from first to third in last night’s game in the newspaper.

What are some examples of the Right of Publicity?

Do you sell consumer products and want to use the name and likeness of a celebrity in your marketing efforts? Are you an athlete or celebrity being offered a sponsorship or endorsement agreement? Are you the guy that lives across the street and found, to your surprise, that your smiling face appears on thousands of coffee mugs being sold by a coffee purveyor? Are you an NCAA athlete that would like to accept a sponsorship/endorsement offer from a local business without jeopardizing your eligibility? Did you do something silly in public and now find a photo of yourself plastered on t-shirts? Do you represent the estate of a deceased celebrity and seek to prevent rampant exploitation of their likeness? Are you photographing models to use those images in an advertising campaign?

All of these scenarios (and many others) involve the right of publicity.

How can we help you?

Proceeding without an appropriate right of publicity license can be very costly. For example, violating California’s right of publicity statute entitles an aggrieved party to damages as well as the violator’s profits, an award of attorneys’ fees, and, in some cases, punitive damages. So tread carefully in this area and contact the lawyers at Crown®, LLP if you have any questions about the right of publicity.