Understanding the Legal Right of Publicity

With an ear-to-ear grin as you proudly sit astride your gleaming horse, you grasp a big blue ribbon. This photograph graces the walls of your home and can be seen in the homes of your relatives and friends. But what happens if, one day, a major equine goods manufacturer uses that picture on its products and advertisements nationwide — without your permission? Do you have any legal rights?

Possibly, yes. This article generally examines the legal right of publicity.

The Right of Publicity
Every human being has a right to control the commercial use of his or her identity. This is commonly known as the “right of publicity.” As a result, any person or business that uses your name, photograph, or likeness for advertisements, promotions or for a business purpose must receive your consent and, at your request, compensate you reasonably. In the example above, it appears that you have grounds to assert that the manufacturer, which used your likeness to sell its products without your consent, violated your legal rights.

State and Federal Laws
Several states have laws on the books that recognize a right publicity and allow those whose rights have been violated to sue the wrongdoer for money (also called “damages”). For example, many state consumer protection laws and deceptive trade practice laws address the situation. Some of these laws define a “deceptive and unfair trade practice” to include the infringer’s act of confusing the public as to the source, sponsorship, approval, affiliation, connection to or certification of goods or services that the person does not have. These laws often also allow aggrieved parties to recover not only damages but also their legal fees.

A federal law called the Lanham Act addresses publicity rights, as well. It states, in part:

Any person who, or in connection with any goods or services. . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any . . . false or misleading description of fact, which . . . is likely to cause confusion or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . . shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

15 U.S.C. § 1125(a). Legal battles like this can be complex and costly. However, the Lanham Act also contains language that may require the infringer to pay the affected person’s legal fees.

What Legal Actions Are Available Against the Infringer?
Below are some options for legal action. They are not appropriate for all cases, and there are others not mentioned in this article. Discuss your options with a lawyer.

A Lawsuit Seeking Compensation
If you believe that the infringer violated your legal right of publicity, your lawsuit against the infringer might be based on certain state and federal laws, including those discussed above. Through a lawsuit you would seek compensation or royalties for the infringement. Also, as this author explained in her book, Equine Law & Horse Sense, there are alternatives to the court system, such as mediation and arbitration, that many believe to be faster and cheaper.

An Injunction to Stop the Infringement
In addition to these remedies, or as an alternative, your lawsuit could attempt to stop all infringing actions (known as an “injunction”). The power of injunctions is great, but the cost to obtain one can be very substantial. Also, if your lawyer rushes into court on your behalf and secures an injunction, the immediate result will only be short term (often called a “preliminary injunction”). Consequently, your lawyer will usually be required to return to court for a trial or hearing on the merits before the court will issue a ruling that makes the injunction permanent.

What Defenses are Available?
In the situation above, here are only some defenses that the manufacturer might assert. There are more.

First Amendment Freedom of Speech
The right of free speech, which is guaranteed by the First Amendment to the U.S. Constitution, is broad but not without limit. Free speech might be a successful defense if, for example, a newspaper hired a photographer to take your picture and then published it for news-related purposes. In this setting, your photograph would arguably be for a communicative purpose, and the paper would assert that you are not entitled to compensation.

The result would be completely different if, for example, an infringement had a commercial purpose. In this setting, if the infringing person or business somehow gained a business advantage through the use of your likeness, then the use is not likely protected by the First Amendment.

Consent of Waiver of Your Rights
If you consented to the infringement in a legally valid way, you would have effectively given up your rights. Many organizations that sponsor equine activities, for example, require the participants or their parents or legal guardians to sign publicity waivers for this reason. This allows the group the benefit of photographing participants and using the pictures to promote its activities to others.

In conclusion, please keep the following concepts in mind:

  • In the eyes of the law, not every use of your photograph or likeness violates your right of publicity. However, where the infringer uses your photograph or likeness for a business purpose, such as advertisements or promotions, the chances become greater that your right of publicity has been infringed. If you suspect an infringement, contact a lawyer.
  • This article does not address the value of a person’s right of publicity. Basketball star Michael Jordan and figure skating champion Tara Lipinski, for example, sell their endorsements for millions. Obviously, these values reflect, in large part, the unique “celebrity” status and widespread recognition each has received.
  • State and federal statutes that address violations of publicity rights also allow the aggrieved parties to recover their attorney fees from the infringer. This means that if you truly have a strong case, and if the perpetrator is financially sound, you might stand to recover the cost involved in pursuing your claim.

This article does not constitute legal advice. Direct your questions involving specific matters to a knowledgeable attorney.

Julie I. Fershtman, Esq.
About the Author

Foster Swift Collins & Smith PC
One Northwestern Plaza
28411 Northwestern Hwy., Ste. 500
Southfield, Michigan  48034


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