The rights of publicity and privacy

This info about the rights of publicity and privacy will apply to you if you intend to make commercial use of any public domain material having a recognizable person as its subject.

Once you determine that a work is in the public domain, can you use it any way you want? Generally, yes — for copyright purposes. Meaning that you may make and distribute copies of the work (and even sell them), adapt or recast it, perform it, or display it.

But if the subject of the work is a recognizable person and you want to use the work in a commercial manner (in an advertisement, say, or on the cover of a book you’re selling) ... you must make sure that you don’t infringe that person’s publicity or privacy rights.

Photo of Nixon and Elvis in the Oval Office

President Richard Nixon and Elvis Presley, 1970.
(National Archives and Records Administration)

For example, this photo of Richard Nixon and Elvis Presley was taken by a White House photographer and is in the public domain. However, Nixon’s and Presley’s estates may claim rights in their likenesses and images, and commercial use of these photographs may be subject to those claims.

Anyone who wants to use this photo commercially would be well advised to first contact the appropriate representatives of former President Nixon or Mr. Presley or consult with her own legal counsel.

What do these rights protect against?

The rights of publicity and privacy are separate from copyright. While copyright protects a copyright holder’s property rights in their work, privacy and publicity rights protect personal interests of the people who are represented in, or by, the work.

Publicity and privacy issues will almost certainly crop up when you make commercial use of a person’s writings, or recordings of their voice, or photos or other pictures of them ... so, it’s a good idea to know a bit about what personal interests these rights protect.

The right to privacy

The gist of the privacy right is that you get to control information about you. At its heart is what Louis Brandeis (with coauthor Samuel Warren) summed up, way back in 1890 before he was a Supreme Court Justice, as "the right to be left alone." (I’m paraphrasing there.) The right to privacy is invaded by:

(See Restatement (Second) of Torts § 652 for more information.)

Example: An advertiser wants to use a photograph of a woman for a billboard supporting a controversial political cause. The advertiser negotiates a license to use the photo with the photographer, who holds the copyright. If the photographer doesn’t have a release from the woman in the photo (permitting the photographer to license all uses of the photo, or otherwise waiving her rights), then the advertiser must get permission from the woman before using her photo on the billboard.

If there was no release, the woman has kept both privacy and publicity rights in the use of her likeness. And, depending on how she feels about the political cause for which her image is used ... she could claim she was portrayed in a false light, as well claiming unlawful commercial appropriation of her likeness.

The right of publicity

A person’s right of publicity is the right to protect his or her name or likeness from being commercially exploited without consent and, potentially, compensation. In one sense the right is treated like a property right (the right to profit from the use of one’s own image or identity). In another sense it’s treated like a privacy right (protection from unjustified intrusion and exploitation).

To avoid violating someone’s right of publicity you must be careful about using their:

Make sure you have permission before using a person’s image or likeness, or their voice or signature, in connection with

Example: A company films an instructional video of a man installing an acrylic bathtub liner and distributes the video to its customers. (The man agreed to be filmed for the video.) The company then hires a production company to make a TV commercial for them. The production company uses footage of the man in the commercial. He did not consent to that use of his image. The man sues both companies for unlawful appropriation and, depending on the state law applied, damages could be based on the infringers’ profits and/or emotional distress.

The rights of publicity and privacy are matters of state law

While copyright is a federally protected right under title 17 of the United States Code, neither privacy nor publicity rights are the subject of federal law. Publicity and privacy rights are the subject of state laws, and the laws vary from state to state.

While many states have privacy and/or publicity laws, others don’t recognize these rights, or they recognize them under other state laws or common law legal theories such as misappropriation and false representation. What may be permitted in one state may not be permitted in another.

Note also that while fair use is a defense to copyright infringement, fair use is not a defense to claims of invasion of privacy or violation of publicity rights. So, your best strategy is to get permission or consult an attorney before you make commercial use of material with a recognizable person as the subject.

The right of publicity may survive a person’s death

While a person’s right to privacy generally ends when he or she dies, publicity rights may continue after death. Currently, twelve states have statutes where the right of publicity survives death ... and they vary in how long the right survives — some states say 10 years, some say 100. (One, Tennessee, says indefinitely as long as the right is being exercised.) This generally applies to celebrities only.

Many estates or representatives of famous authors, musicians, actors, photographers, politicians, sports figures, and other public figures do indeed continue to control and license the uses of those figures’ names, likenesses, voices, etc. So ... whether or not you believe that Elvis is dead, you can be sure his right of publicity is alive and kicking.

(As previously mentioned, Tennessee is one of the states where the right survives death. And, honestly, it wouldn’t matter if it wasn’t, because the Presley estate’s lawyers could probably convince the court that another state’s law applied anyway. Especially if your commercial use was on the Web.)

What if the right of publicity isn’t recognized in my state?

Even if you use a person’s name, image, or likeness in a state where the right of publicity isn’t recognized, you still could find yourself in hot water. Why? You could also be sued under the federal Lanham Act, 15 USC § 1125(a), for unauthorized uses of a person’s identity in order to create a false endorsement. So ... it really doesn’t matter that not all states recognize the right, you see. Unfair competition law also provides protection if you use a person’s identity to falsely advertise a product.

What if my use is not commercial?

The right of publicity doesn’t protect informational or editorial uses. Although the risks for making editorial use of a person’s image or likeness may be less than for using it in advertising or for other commercial purposes, you would still run a risk if you held the depicted person up to ridicule or presented that person in a libelous manner. So, um, don’t.

The bottom line

Privacy and publicity issues must be dealt with separate from, and in addition to, copyright. If you intend to use a person’s image, likeness, voice or signature commercially, make sure you get permission first.


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