What is the Right to Publicity?
The right of publicity is defined as the individual’s right to control and earn a profit from the commercial use of his or her likeness, persona, and name. I will refer to this as the “identity” throughout the article. This particular body of law has been developed over the years as a way to protect an individual from any loss of value through the unauthorized use or appropriation of their identity by someone else.
This is something that each state has worked to develop through case law so the laws in each state will vary. It is strongest in states with large entertainment industries such as CA, NY, TN and even FL. There is no uniform federal law covering this, like with other intellectual property rights such as trademarks and copyright, however recently many have been clamoring for more uniformity so I will keep my eyes on that as it develops.
Some states only protect celebrities or public figures, while other states apply the right of publicity to any individual if that individual’s identity has been misappropriated for some type of publicity value. In other words, that individual may not be a celebrity by normal standards, but they have previously used their own identity for commercial purposes. This is where the social media influencer likely falls.
The right of publicity is not the same as the right of privacy, so try not to get the two confused. Everyone has a right to privacy in certain situations to avoid the “emotional anguish” that comes along with a violation of this right. The right to publicity is a property right that protects the individual’s ability to capitalize on their own identity.
How might this apply to you?
As I mentioned above, social media influencers and entrepreneurs whose brands are really just themselves will find that this right is very important to their brand and their livelihood. No, influencers are not traditionally thought of as celebrities and maybe not public figures but they are increasingly becoming famous and well known. And, by legal definition that is what a celebrity is. So although you may not view yourself as a celebrity with a right to publicity if you are at all well known, you have this right.
There are certainly legal arguments to be made, and shall we say, issues regarding proving a celebrity status and of course a balancing of the first amendment right of free speech with a person’s right to publicity. However, that discussion is better suited when specific facts are involved that can be analyzed to determine how a court might rule on the situation. If you think you have a right to publicity case don’t hesitate to reach out!
What should you look out for?
As social media grows, and influencers become more integral to the way brands market their products and services- the right of publicity will become more important.
As an influencer, there are a few things that you must be cognizant of.
First: If a company or brand or even an individual is using your image, name or otherwise referring to you for commercial purposes without your consent, you have every right to stop them from doing so. This is the most obvious case. In this scenario reach out to the person violating your right and let them know it is not allowed, and you will take action if necessary. If they respond poorly, find an attorney to advise you on the next steps.
Second: When you begin to gain notoriety on social media many companies will reach out to work with you. This is probably very exciting and fun, but they don’t always have your best interest in mind. I have heard of companies who sign influencers on as affiliates or athletes or even full sponsorships and the contracts signed to indicate that the company may use that person’s name and likeness…forever. Yes. Forever! Even after you stop working with that company or brand, they are allowed to use your picture or name for marketing purposes, possibly for any purpose, until the end of time. That is scary! For more on this and some actionable steps, you should take check out my YouTube video here- will link to vid.
Third: It isn’t just big companies that need to be monitored for misappropriation. The more content and value an influencer adds through social media the more likely it is their image will be wrongfully used for commercial purposes. There are almost infinite possibilities for how someone might misappropriate one’s identity. A picture as their YouTube banner to gain notoriety, a picture with an influencer and a caption indicating the influencer endorses their coaching services, and the list goes on. It is important to monitor all social media networks for misappropriation.
With the explosion of the social media influencer onto the scene, the legal landscape surrounding the right of publicity is changing and will continue to do so. There has been a push for a uniform approach to handling these cases, but for now, they are predominately controlled state to state. Companies and individuals alike must remain mindful of all of the issues that come along with the right to publicity before launching any social media page, app, marketing campaign and so forth. If you want to use someone else’s name and likeness, get permission. If you are a social media influencer and you work with brands lending out your name and likeness, ensure they can’t use it forever. And if you’re an individual who thinks their right to publicity may be infringed on, but you don’t view yourself as a “celebrity” it may not matter.
I hope this was helpful! If you have further questions please feel free to reach out to me at Shannon@montgomerypllc.com or through the contact form on my website. As always, follow me on Instagram at MontgomeryLawPllc and on YouTube at Shannon Montgomery.
Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.