Using Someone’s Image in Advertising

As a business owner creating an advertisement, you may be tempted to use an image of a person that you believe would epitomize what you want to convey to potential customers or clients. If so, you should be aware of the right of publicity and the right of privacy.

These rights find support in common law, and in some states, statutory law. There is also a federal law protecting the unauthorized use of a person’s identity to create a false endorsement or to unfairly compete.

The right of publicity is the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one’s identity. One way to distinguish the right of publicity from the right of privacy is to focus on the economic interests involved. Advertisements are more likely to deal with the right of publicity most likely because of the financial aspects.

In some states, it is a misdemeanor to use for advertising purposes the name, portrait or picture of any living person without having first obtained the written consent of the individual. (If a minor is involved, written consent is required of his or her parent or guardian.) Violators could also be subject to an injunction and other damages.

Similarly, use of a deceased person’s, name, voice, signature, photograph, or likeness, in any manner, without proper consent could result in damages.

Using Look-Alikes

The right of publicity could even include, the use of a look-alike in your advertisements — and there is much litigation on this point. Many celebrities and public figures have obtained injunctions, settlements, and damages to stop or obtain relief for the use of “imposter ads.” So even if you think that you are safe by using a look-alike and not the real image of the person, you could subject your company to a lawsuit.

In addition to look-alike models, there have been successful lawsuits against sound-alike voices impersonating distinctive singers. Video game companies have been sued for using animated characters that impersonate well-known athletes, politicians and others.

Not Just Celebrities

Celebrities are not the only ones who fight back when their names and likenesses are used in advertising without their consent. A class action lawsuit was filed against Facebook that resulted from the social media site allowing users’ names and photographs to be used in advertising without their permission. After some Facebook users “liked” businesses, products or services, their names and photos were used in “Sponsored Stories” advertising. The lawsuit, which is still pending, alleged this practice violated the users’ right of publicity under California law.

A business should make sure it is in compliance with applicable state publicity and privacy laws, as well as trademark and copyright law since there could be protection in some cases.

Note: The right of publicity and the right of privacy protect publicity rights while copyright protects property rights. So if a business uses a person’s voice or photo in a commercial, it may be infringing on the individual’s publicity rights as well as copyright and trademark rights.

Further, if a business wants to use an image of someone after determining that the right of publicity is enforceable, the business needs to obtain licensing and adaptation rights for advertising and merchandising. This requires negotiations between the parties on the terms and condition of the license. The most important aspect of licensing is how to value it. Not surprisingly, valuation is also the focus of litigation involving the right of publicity.

Consult with your attorney about these issues so your advertising complies with all applicable state and federal laws.