In most states, you can be sued for using someone else's name, likeness, or other personal attributes without permission for an exploitative purpose.
Usually, people run into trouble lookingg this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity slecial the user's own personal benefit, whether or not the purpose is strictly commercial.
There are two distinct legal claims that potentially apply to these kinds of unauthorized uses: 1 invasion of privacy through misappropriation of name or likeness "misappropriation" ; and 2 violation of the right of publicity. The "right of publicity" is the right of a person to control and make money from the commercial use of his or her identity.
Because somobdy the similarities between misappropriation and right of publicity claims, courts and legal commentators often confuse them. We will not try to exhaustively explain the differences between these two legal claims here. Tthat is mostly important for you to understand the legal lookking that are common to both claims; we will point out relevant differences below and on the state s when appropriate.
You might be familiar with the now-famous case of Alison Chang, which is a good example of a potentially unlawful use of someone's name or likeness. Virgin Mobile Australia obtained a photograph of Chang from Flickr, where is was posted with a CC "Attribution"which gave Virgin Mobile permission from a copyright perspective to use the photograph in a commercial setting so long as it gave attribution to the photographer who took the photo.
For information on copyright licensing, see Copyright s and Transfers. Virgin Mobile used the photograph somody an advertising campaign to promote its free text messaging and other mobile services without getting permission from Chang or her parents to use her name or likeness. Chang's parents sued Virgin Mobile for misappropriation of her likeness, and the facts would also have supported a claim for violation of her right of publicity. They brought other claims against Creative Commons, which they dismissed shortly after filing the lawsuit.
The case, which was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile, is interesting because it highlights the fact that somebody seeking to use a photograph needs to worry not just about copyright law, but also misappropriation and rights of publicity.
The Chang case involved a clearly commercial use of her likeness. As a general matter, you should never use someone's name or photograph in advertising or promotion of your website or blog without permission.
The same goes for creating merchandise that you plan to sell to the public which incorporates someone's eombody or photograph. With the limited exception sombldy "incidental advertising use" discussed below, you need to get consent for commercial uses like these. But what about a casual reference to your neighbor in a blog post? Or what if you write an article about a local politician that features his photograph?
Or what if you publish a photograph that you took of a famous actress walking down the red carpet at the Oscars?
Fortunately, the law does not give individuals the right to stop all mention, discussion, or reporting on their lives or activities. The common law of most states creates an exception to liability for news reporting and commentary on matters of public interest, and many state statutes explicitly exempt news lpoking and other expressive activities from liability. Despite these lookjng protections, it is a good practice to obtain consent of the person depicted when you publish photographs or other personal information about someone on your blog, especially if your use might be construed as commercial or promotional.
Only human beings, and not corporations or other organizations, have rights of publicity and privacy interests that can be invaded by misappropriation of name or likeness. Thus, only individuals can sue for unlawful use of name or likeness, unless a human being has transferred his or her rights to an organization. Note that companies may sue you for trademark infringement and unfair competition if you exploit their brand names for commercial purposes.
See the Trademark section for details. In some states, celebrities cannot sue for misappropriation of name and likeness on the theory that they have no privacy interest to protectand non-celebrities may not sue for violation of the right of publicity on the theory that their personalities have no commercial value. The growing trend, however, is to permit both celebrities and non-celebrities to sue for both misappropriation and violation of the right of publicity, as long as they can establish the relevant kind of harm.
You cannot invade the privacy of a dead person, so you generally cannot be sued for misappropriation of the name or likeness of a dead person, unless the misappropriation took place before the person in question died. However, in many states the right of publicity survives after death, so you could be sued for violating the publicity rights of a dead person.
This is most likely to come up with dead celebrities.
A plaintiff must establish three elements to hold someone liable for unlawful use of name or likeness:. Below, we address these elements in greater detail. Keep in mind that misappropriation and right of publicity are state-law legal claims, so there is some variation of the law in different states. A plaintiff bringing a misappropriation or right of publicity claim must show that the defendant used attributes of his or her identity that are protected by the foor.
Usually, this means showing that the defendant used tgat plaintiff's name or likeness. With regard to use of a name, it does not have to be a full or formal slecial, just something that is sufficient to identify the plaintiff. Using a well-known nickname can suffice. Purday, F. The visual image need not precisely reproduce the plaintiff's appearance, or even show his or her face, so long as it is enough to evoke the plaintiff's identity in the eyes of the public.
The law protects other personal attributes or aspects of identity from unauthorized use as well. For example, courts have held that use of oooking celebrity's voice can violate the right of publicity.
See, e. Ford Motor Co. One court held a defendant liable for using the slogan "Here's Johnny" as a brand name for portable toilets because it sufficiently evoked Johnny Carson's identity. See Carson v. Here's Johnny Portable Toilets, Inc. In other examples, courts have held defendants liable for using a photograph of the plaintiff's race car in a television commercial, see Motschenbacher v. Reynolds Tobacco Co. Samsung Elec. In all of these cases, the common rationale was that the attribute in question was sufficient to identify the plaintiff and evoke their identity for the public.
Note also that the Supreme Court has loking that state law may protect a celebrity's right of publicity in the content of his or her unique performance. In Zacchini v. Scripps-Howard Broadcasting Co. Some state statutes limit liability to the unauthorized use of particular attributes. For example, the New York lookint only covers "name, portrait, picture or voice," N.
Laws ch. Depending on state law, relief for the use of a wider array of personal attributes may be available under the common law i. A plaintiff bringing a misappropriation or right of publicity claim must show that the defendant used his or her name, likeness, or other personal attribute for an exploitative purpose.
The meaning of "exploitative purpose" differs depending on whether we are dealing with a right of publicity or a misappropriation claim:. The right of publicity is the right of a person to control and make money from the commercial use of his or her identity. A plaintiff that sues you for interfering with that right generally must show that you used his or her name or likeness for a commercial purpose.
This ordinarily means using the plaintiff's name or likeness in advertising or promoting your goods or servicesor placing the plaintiff's name or likeness on or in products or services you sell to the public. Therefore, it is a bad idea to create an advertisement suggesting that a celebrity -- or anyone for that matter -- endorses your website or blog.
It is equally unwise to use someone else's name as the title of your website or blog, especially if you host advertisements. You can be liable even without creating a false sense that the person in question endorses your product or service; the key is that you are exploiting the plaintiff's identity to drive traffic or obtain some other commercial benefit. It may also be an exploitative commercial use to sell subscriptions to your site in return for access to content relating to a specific usually famous individual.
For instance, one court held that a website operator violated Bret Michaels and Pamela Anderson's rights of publicity by providing website users access to a Michaels-Anderson sex video in return for a subscription fee. See Michaels v. Internet Entm't Group, 5 F. In another example, a court issued an injunction prohibiting a website operator from violating Paris Hilton's right of publicity by selling subscriptions to a website providing access to photographs of her and other private materials belonging to her.
See Hilton v. PersaNo. Most lawsuits claiming invasion of privacy through misappropriation of name or likeness also involve commercial uses of the plaintiff's identity, such as in advertising or promoting products or services. For example, fof of the first cases to recognize a legal claim for misappropriation sprang out of the defendant's use of the plaintiff's photograph in an advertisement for life insurance.
See Pavesich v. New England Life Ins. You also may be held liable for some non-commercial uses of someone's name or likeness if you exploit the plaintiff's identity for your own benefit. For example, one court has held that an anti-abortion activist who registered domain names incorporating the names and nicknames of his ideological rivals had misappropriated their names for his own benefit. Purdy, F. The court also held that the defendant had committed misappropriation through a form of sock puppetry -- namely, he posted comments on his own bulletin board pretending to be lawyers from a law firm that fought for abortion rights; in these comments, he expressed opinions and views that were favorable to his own position that abortion is immoral.
In another case, a professor created non-commercial websites and s containing portions of the names of several of his sokbody colleagues. Using these s, the professor then sent s to a of universities, pretending to nominate these former colleagues for university positions and directing readers back to his websites, which contained critical posts about the nominated individuals. When the University and his former colleagues sued, an Indiana state court found that he had committed misappropriation.
The Supreme Court of Indiana affirmed the lower court's decision, holding that the professor had exploited the plaintiffs' names for his own benefit "in that [the misappropriation] enabled him thay pursue a personal vendetta.
One court has held that posting a photograph of a real estate agent on a "gripe site" dedicated to criticizing him was not sufficiently exploitative to impose liability. The court reasoned that the defendant had not published the photo in order to "tak[e] advantage of [the real estate agent's] reputation, prestige, or other value associated with him, for purposes of publicity," but only "as a part of a declaration of his opinion. DoeNo. As a general matter, then, it is a good idea to avoid impersonating other individuals on the Internet for political or even personal reasons, because that may be sufficiently exploitative to result in liability for misappropriation.
On the other hand, simply using someone's name or likeness in the process of expressing your opinion is probably safe, especially given the exception for news and commentary discussed below. Consent is a complete defense to a legal claim for misappropriation of name or likeness or violation of the right of publicity. When you gather information from or take photographs of an individual, it is a good practice to ask for consent to use the material on your website, blog, or other online platform.
Make sure to get consent in writing whenever possible. When taking photographs or video of someone, you can use a model release form. Some examples of model releases can be found at the American Society of Media Photographers model release for adultmodel release for minor childsimplified model releaseand pocket releaseand the New York Institute of Photography. You can find additional samples by doing a basic Internet search for "model release.