Right of publicity in United States

Social media has confirmed that there is no need to be a celebrity to profit from one's own image. The right of an individual to control the economic use and exploitation of their identity is called "the right of publicity". In most states, this right extends to an individual's name, image and likeness. It can serve as a legal tool to recognise and secure an individual's financial interest in their identity. So, what does the right of publicity protect? And how can one make a case for or against a violation of this right?

Right of publicity across states

Over half of US states currently recognise the right of publicity via statute, under common law or under a combination of both. However, not every state that recognises the right of publicity defines the right in the same way. For example, states vary in how long they allow the right of publicity to last after an individual's death, and some conflate the right of publicity with other rights that afford similar protections, such as privacy rights.

Infringement

Unauthorised commercial use of a protected aspect of a person's identity is, generally, a violation of that person's right of publicity. However, a violator may have a strong defense against unauthorised use in a variety of contexts, including the following:

• consent – if the rights holder consented to the use of their identity, the right of publicity claim will usually fail;
• newsworthiness – if the use is considered to be a response to the public's right to know certain information, then the use of the identity is considered necessary and "newsworthy," since the use is then not for commercial purposes;
• artistic or creative works – use for parodies, works of art or other creative expressions is generally considered to be in the public interest and not an infringement of the individual's right of publicity; and
• statute of limitations – the statute of limitations for right of publicity claims varies by state.

The rights holder should consider strategies to control the individual's image to make it more difficult for an infringer to use it without authorisation, or more difficult for a user to successfully defend their use with the above justifications.

Remedies

If a rights holder can show a right of publicity violation, remedies may include:

• monetary damages;
• injunctive relief;
• an award of the profits the infringer received from the use; or
• punitive damages for wilful violations.

A rights holder is generally not required to show proof of actual damages to succeed in a right of publicity claim, so liability for an infringer can be costly if the violation is proved, despite a lack of financial harm to the rights holder.

Transfer and licensing

Since the right of publicity is treated as a property right, the right may generally be assigned, licensed or transferred, in whole or in part, to another party.

When negotiating a license agreement for an individual's right of publicity, the parties should include restrictions so that the resulting use is not surprising or offensive to the rights holder, and so that the boundaries of use are clear to the licensee. For example, such a license may limit the use to a particular industry or to a certain period.

Parties on either side of the arrangement can work with counsel to consider the rights granted to the individual in the applicable state, consider how courts may interpret or enforce against a particular use of the identity in question, or account for the parties' concerns and interests.