The Right to Control Use of Your Image and Likeness

The proliferation of digital media and communications networks has made it easy for individuals or businesses to take an image or video of a person and use it for their own purposes. This can often mean that a person may find that his/her name or likeness is being used, often for commercial purposes, without authorization. In recent years, such persons have found relief in the law under the theory that their “right of publicity” has been infringed or misappropriated.

The right of publicity has been defined as the inherent right of every human being to control the commercial use of his or her identity. Thomas Phillip Boggess, Causes of Action for an Infringement of the Right of Publicity, 31 Causes of Action 2d 121 (2006). The right of publicity is based in state law, which create an intellectual property right that when infringed upon is a commercial tort of unfair competition. Id. The right of publicity has been recognized by various states — by the courts through the common law, by legislatures through statute, or by both. See J. Thomas McCarthy, The Rights of Publicity and Privacy Sec. 6:3 (2nd ed. 2006). Most other states, while not recognizing the right of publicity, do recognize a cause of action based in the right of privacy which, while protecting different interests, may arise from the same factual scenarios as right of publicity cases. Id. at Sec. 5:61.

State Statutes

Eight states currently have statutory provisions on the books which encompass the right of publicity. McCarthy at Sec. 6:3. These states are: California, Florida, Illinois, Kentucky, Ohio, Pennsylvania, Texas, and Wisconsin. Id. Ten additional states have statutes which, although labeled as privacy statutes, are worded such that they effectively encompass most of what is known as the right of publicity. Id. These states are: Indiana, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Virginia, and Washington. Id.

Common Law

The leading Supreme Court decision in this area is Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). This case concerned a television news station that had taped and rebroadcast an entire 15 second “human cannonball” act performed by Zacchini. Id. at 563. Although the Court’s holding did not turn on the Constitutionality of the right of publicity, the Court treated the cause of action as a viable one and used the term “right of publicity” several times throughout the opinion. See id. at 577. This treatment by the Supreme Court led other courts to begin to recognize the common law right of publicity. SeeMcCarthy at Sec. 1:33.

There are currently eighteen states whose courts have recognized a common law right of publicity. McCarthy at Sec. 6:3. Only the Nebraska and New York courts have expressly rejected a common law right of publicity, although the New York legislature later remedied this rejection by statute. Id. The eighteen states that have recognized a common law right of publicity are:

Most other states, while not explicitly recognizing a right of publicity, do recognize a cause of action grounded in the right of privacy. In these states, the right of privacy gives rise to a claim for invasion of privacy arising out of the unauthorized appropriation of a person’s name or likeness. Id. It is important to note that the injury to one’s right of privacy is to a person’s human dignity and psyche, while injury to one’s right of publicity is to the commercial value of one’s identity. McCarthy at Sec. 5:61. Therefore, the damages awarded in a successful privacy claim will be measured by the plaintiff’s mental or physical distress and related damages. Id. at Sec. 5:62.

Maryland is not one of the states that have explicitly recognized a common law right of publicity. However, the Maryland Court of Appeals has recognized the tort of invasion of privacy through appropriation of another’s name or likeness. Lawrence v. A.S. Abell Co., 475 A.2d 448, 450-51 (Md. 1984); see also Barnhart v. Paisano Publications, Inc., 2006 WL 2972570, p. 4-5 (D. Md. 2006) (applying Maryland law); Comins v. Discovery Communications, Inc., 200 F. Supp. 2d 512, 523 (D. Md. 2002) (applying Maryland law). In recognizing this tort, the Maryland Court of Appeals has explicitly limited its scope to those cases where the name or likeness appropriated has commercial value and where such appropriation is not incidental. Lawrence at 453-54; seealso Barnhart at p. 5; Comins at 523.

Causes Of Action

Infringement of Right of Publicity

In general, to establish a prima facie case of liability for infringement of one’s right of publicity, a plaintiff must establish the following elements:

(1) Validity.

Plaintiff owns an enforceable right in the identity or persona of a human being; and

(2) Infringement.
(A) Defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant’s use; and

(B) Defendant’s use is likely to cause damage to the commercial value of that persona.

McCarthy at Sec. 3:2.

In a jurisdiction with a statute covering rights of publicity, the complaint would track the language of the statute.

Invasion of Privacy – Misappropriation

In general, to establish a prima facie case of liability for invasion of privacy through misappropriation, the plaintiff must establish the following:

(1) Defendant, without permission, has used some aspect of the plaintiff’s identity or persona in such a way that plaintiff is identifiable from defendant’s use.

(2) Defendant’s use causes some damage to plaintiff’s peace of mind and dignity, with resulting injury measured by plaintiff’s mental or physical distress and related damage.

McCarthy at Sec. 5:62.

Damages

Monetary damages in right of publicity cases are usually limited to those resulting from harm to the commercial value of one’s identity. There are generally three measures of damages for a misappropriation of image and likeness that violates a person’s right of publicity. First, a plaintiff may recover the fair market value of the aspects of his/her identity that have been misappropriated. This measure of damages presents problems of vagueness and proof. Second, a person may be entitled to recover damages for loss to his/her future earnings potential or value to them of future publicity opportunities. Finally, under a theory of unjust enrichment, damages may be measured by the profits the defendant made in using the misappropriated identity, which sometimes is the most advantageous to the person whose image was misappropriated. Any applicable state statutes or case law must be examined for any provisions dealing with or otherwise regulating damages. For example, some states may allow exemplary or punitive damages. Boggess at Sec. 43.

Limitations – Time to Sue

Most courts treat misappropriation of image and likeness as a tort subject to the state law statute of limitations governing general tort causes of action. In Maryland, a claim for misappropriation of image and likeness should be brought within three years, which is the period under the general statute of limitations for tort actions, subject to the “discovery” rule, which holds that the cause of action begins to run when the injured person knew or should have known of the misappropriation. Many states have statutes that address the right of publicity, and those statutes must be examined with respect to any applicable limitations.

---

Gorman & Williams attorneys have litigated cases involving the right of publicity in both state and federal courts.