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The Right of Publicity: How Not to Go Wrong

| Jan 7, 2009 | Business & Commercial

Ryan A. Burch contributed to this post.

The right of publicity gives individuals the right to control how their names and likenesses are used, as well as the right to stop others from using them without permission. Artists whose work features individuals’ names or likenesses should take measures to ensure that right of publicity issues are resolved prior to completing a work, and preferably contemporaneous with the creation of a work. Failure to do so could, in a worst case scenario, prevent an artist’s work from being viewed or distributed, and possibly even subject one to suit for damages.  Issues relating to right of publicity most commonly arise in photography, film, and video, but may also extend to drawing, painting, and other types of graphic arts where an individual’s name and/or likeness are portrayed.

The right of publicity varies greatly from state to state.  Some states have statutes setting forth the scope of an individual’s right of publicity, the assignability or descendability of that right, and statutory damages for violations.  Other states, like Maryland, recognize the right of publicity under the common law right of privacy, which protects against the misappropriation of a person’s image and likeness.

Artists dealing with potential right of publicity claims can take several measures to help avoid or limit future problems.  First and foremost, when creating work featuring individuals’ names or likenesses, always get a signed, written release from the subject which grants to the artist the authority and permission to use the individual’s image or likeness.  Even if you initially plan to use an image for newsworthy purposes that may be protected under the First Amendment, getting a written release will protect you in case you decide to use the same image for commercial purposes later.  Obtaining and retaining a written release from every individual who is identifiable in a work may seem cumbersome, but it is worth the effort given the potential for negative consequences.

Second, if your use may extend beyond its initially anticipated use, consider broadening the scope of permitted use under the release so that you (or your client) are not precluded from reusing or republishing the material.  Note that if you are not using a person’s name or likeness, copyright law may still limit your ability to use material that you did not yourself create (e.g., a photograph in which an individual is not identifiable), and analysis of copyright issues may be necessary.  Thus, while a general form of release may, in some instances, suffice, it is a good idea to ensure that, when preparing a release, the drafter considers all potential uses and prepares a release which will fully ensure that all anticipated uses are covered.

Third, if you are using images or footage of individuals generated by another source, such as an advertising agency, include provisions of indemnity in your agreement with the provider, which will help protect you in the event the individual whose name or likeness is used files a claim objecting to such usage.  If you are unsure of the provenance of an image or footage, you should make sure that someone is willing to vouch for its use and to protect you in the event of a claim.

If, on the other hand, you are an individual who finds that your image or likeness has been used without your permission, you may have legal recourse against the user of the image for violating your right of publicity (or privacy) if that image is used for commercial purposes.  Rights of publicity exist regardless of whether you are a public or a non-public figure; the law grants you a right of publicity with a blind eye as to your degree of celebrity.

There are some exceptions to an individual’s ability to make a right of publicity claim.  One exception is for “incidental” uses.  Incidental uses are typically those that fall within the protections of the First Amendment — for example, an image of a crowd of people at a public event in a public setting that is ultimately published in a newspaper.  The First Amendment provides that publication of an individual’s image for newsworthy purposes is permissible, notwithstanding that individual’s right of publicity.

The bottom line is that, whether one is in front of the lens or behind it, it is important to be aware of the right of publicity.  Properly dealing with right of publicity issues, in advance, will help ensure that legal loose ends are resolved at the outset and the production schedule can continue uninterrupted.  On the other hand, failure to properly deal with right of publicity issues until a work is complete can cause the first screening of a film to happen not at a film festival, but inside a courtroom.

Originally published in Arts Brief (Summer 2008 issue), a quarterly publication of Maryland Lawyers for the Arts.