What Content Creators Must Know About the Right of Publicity

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Written By Brian T. Edmondson, Esq.

Hi, I'm Brian. I'm an internet entrepreneur & lawyer. I write about all things internet business & law.

Hey, it’s Brian. This article is for informational purposes and is NOT legal advice, cool? Onto the article…

You’ve probably seen reality shows or online videos where one or more people have their faces blurred. What’s the deal?

No, they’re not hiding from the law (well, maybe some are). The trouble is that those folks did not give consent for their likeness to be used in the video, so enter the face-blurring effect.

What is the Right of Publicity?

It’s all about what’s called the right of publicity, which prevents commercial use of a person’s name, image, likeness, or anything recognizable about their persona, such as voice, likeness, nickname, or pseudonym, without their authorization.

This is why models used in ads or commercials sign consent forms. Or those who were unwittingly part of the Jackass or Borat movies have their face blurred – or are edited out – if they don’t sign consent forms. (Yes, this means those people in those movies, faces unblurred, gave consent for the embarrassing acts they were a part of!)

Think of the right of publicity as kind of like a trademark for people. Trademarks protect words and symbols, while the right of publicity covers the “human identity.” (Please note that celebrities and other well-known people often have their name and/or likeness evolve into trademarks, which they can register as a trademark with the government.)

Unlike trademarks or copyrights, the right of publicity is not enshrined in federal law officially. However, about half of the states do have a law on the books about the right of publicity, which is considered a type of intellectual property, and there is a right to protection against false endorsement, association, or affiliation in federal statutes.

Why Should Content Creators Care About the Right of Publicity?

You could not, for example, sell a t-shirt without permission with a picture of Michael Bolton that says: “Michael Bolton loves YOUR CHANNEL NAME or BRAND NAME.” In fact, you couldn’t do that with anybody’s picture in some states – they don’t have to be famous. 

Some other examples:

  • You could not hire someone who sounds like Morgan Freeman to narrate one of your videos – even if you don’t claim it is the famous actor.
  • You could not post videos of people at the beach using a type of sunglasses you are promoting on your Instagram as part of an endorsement deal with the brand.
  • You could not post a series of photos of yourself posing with actors and actresses and imply they endorse your coaching program.

Basically, it’s all about not being able to use somebody’s likeness – visual or audio – for your own commercial gain. In other words, if you’re selling something, you can’t do it unless you get their permission.

Michael Jordan Dunks on Grocery Store Chain 

There is a famous landmark right of publicity case involving basketball great, Michael Jordan. 

Back in 2009, Sports Illustrated published a special issue about Jordan and his achievements around the time he was inducted into the Basketball Hall of Fame. 

A Chicago-based grocery store chain, called Dominick’s Finer Foods, ran an ad in that issue that used Jordan’s name, his jersey number, and a silhouette of him dunking a basketball in the ad. Along with a $2 off coupon (which apparently really stung Jordan especially).

They did not have Jordan’s permission. But, they maintained, that they had not said that Jordan was endorsing their stores… so it was okay. The courts and a jury disagreed. 

Dominick’s ended up paying Jordan $8.9 million for unauthorized use of his likeness. Jordan donated the money to Chicago-area charities.

This case was seen as a severe warning to other companies to not use any celebrity’s likeness without authorization. Ads like this are seen as diluting the value of a celebrity’s brand, which is why they are so quick to take legal action against offending companies.

When the Right of Publicity Is on Your Side

The good news is that as a content creator, you also have to give permission for other businesses to use your likeness in their commercial work. For example, a brand can’t use your name, image, likeness, or other recognizable part of you for commercial purposes without your consent.

They have to seek you out and get your permission. Especially because, as an influencer, you are a public figure with some notoriety. You are essentially a celebrity in the social media age. Your personal brand has value, and you must protect it.

As you gain a following as an influencer, you’ll likely start receiving invitations to endorse all sorts of products and brands. But you have to watch out, even if they have sought your permission and are ready to pay you a significant fee to use your likeness. 

Read the contracts closely. Sometimes companies will word the contracts so that they are allowed to use your name and likeness indefinitely for marketing purposes. Not good. Instead insist on putting a time limit in the contract.

There was a recent case involving an influencer’s right of publicity involving the media and tech company PopSugar.

It was a class action suit, started by prominent fashion blogger Nitra Batra, which alleged that PopSugar reposted the photos of hundreds of influencers without permission, removed the links to products they were endorsing, and then replaced the links with new links that benefited PopSugar.

In doing this, the lawsuit also maintained that PopSugar also implied, by using the influencers’ names and likenesses, that they were affiliated with PopSugar’s products or services.

That’s a pretty clear-cut case of cashing in on somebody else’s reputation and potentially damaging it at the same time.

The case was settled for an undisclosed amount but also serves as a warning to other companies. And there were also similar lawsuits filed by other influencers which ended in similar circumstances.

What to Remember About the Right of Publicity

The right of publicity is an important concept to remember for two reasons:

  1. Keeping yourself out of trouble by not violating somebody else’s right of publicity, especially when dealing with celebrities.
  2. Protecting your own brand by pursuing legal action against anybody who uses your name or likeness without permission.

Fortunately, the concept is pretty straightforward and easy to understand. It’s all about protecting the right to control the commercial use of one’s identity.

But, when it doubt, seek legal advice!