Protecting Your Persona: The Right of Publicity Explained

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Discover the Right of Publicity: the powerful legal tool that allows every individual, not just celebrities, to control the commercial use of their name, likeness, and identity. Learn how state laws protect your persona and prevent unauthorized misappropriation for commercial gain.

In the digital age, a person’s image and identity—their “persona”—is more valuable than ever. From social media influencers to major athletes, the ability to control and profit from one’s own fame or recognition is a significant economic asset. This control is legally protected by a powerful concept known as the Right of Publicity.

Whether you are a business owner considering a promotional campaign or an individual seeking to protect your own image, understanding this area of intellectual property is crucial. This post will demystify the Right of Publicity, explain its scope, and outline the key differences between this property right and the traditional right to privacy.

What Exactly is the Right of Publicity?

The Right of Publicity is an intellectual property right that grants an individual the exclusive authority to license and profit from the commercial exploitation of their identity.

The Core of the Right: Protecting Your Persona

Unlike copyright or trademark, which protect creative works or source-identifying brands, the Right of Publicity protects the individual. It is about preventing the misappropriation of one’s identity for commercial benefit without prior consent.

What Aspects of Identity are Protected?

Protection under this right is broad and often extends beyond just a person’s name and photograph. The protected “indicia of personal identity” can include:

Name, Pseudonym, or Nickname: Protecting against the use of a professional moniker or stage name.
Likeness and Image: This includes photographs, portraits, caricatures, and even “look-alikes” or robots designed to evoke the person (as seen in the famous Vanna White case against Samsung).
Voice: An identifiable voice, even if imitated by a sound-alike artist, can be protected from unauthorized commercial use (e.g., the Bette Midler case).
Signature and Catchphrases: Unique, recognizable phrases or a signature used to promote products.

💡 Legal Expert Tip

Always secure a detailed, written consent agreement before using any aspect of a person’s identity—especially for advertising, merchandise, or product sales. This is your primary defense against a Right of Publicity claim.

Property Right vs. Privacy Right: The Key Distinction

The Right of Publicity is frequently confused with the Right of Privacy, which often includes a claim for the “misappropriation of name or likeness”. However, a critical difference exists:

Comparison of Rights (Tort and Property)
Feature	Right of Publicity (Property Right)	Right of Privacy (Personal Right/Tort)
Focus	The economic and commercial value of the persona.	Protection against emotional distress and humiliation.
Who Sues	Any individual whose identity has commercial value.	Any individual whose private life has been invaded or exposed.
Descendibility	Can often survive death (post-mortem rights), as it is a transferable property asset.	Generally terminates upon the person’s death.

The State-Law Landscape: A Patchwork of State Statutes

In the United States, the Right of Publicity is primarily governed by state law—not federal law. This means the scope and duration of the right can vary dramatically depending on the state of residence of the individual, creating a complex legal patchwork.

Case Law Spotlight: Post-Mortem Rights

A central difference between states is the recognition of post-mortem rights. States like California and New York, driven by their entertainment industries, have specific statutes that allow the right to pass to the deceased person’s heirs or estate for a set period (e.g., 70 years in California). Tennessee, home of Elvis Presley, was one of the first states to recognize the survivability of this right. This allows the estates of celebrities to continue controlling and monetizing the image of a deceased personality.

Infringement and Key Defenses

A successful claim for violation of the Right of Publicity typically requires proving an unauthorized, knowing use of a person’s identity for advertising, selling, or soliciting purchases of goods or services. However, not all uses are violations. The right is continually balanced against the fundamental protection of free speech under the First Amendment.

Common Defenses Against a Right of Publicity Claim:

Newsworthiness: The use is part of a news report, public affairs, or a matter of public interest. This exemption is crucial for journalists and media organizations.
Artistic/Creative Works: Creative expressions like movies, books, songs, or art that depict a person are generally protected, though the line is drawn when the art is merely a form of merchandise designed primarily for commercial gain (the “transformative use” test is often applied).
Incidental Use: A brief or minor use that is not central to the commercial promotion.
First Amendment Protection: Generally, the use of a person’s identity in non-commercial speech is protected.

Remedies for Misappropriation

If a violation is proven, a plaintiff may be awarded monetary damages, including actual damages, the infringer’s profits, statutory damages (in some states), and, for willful violations, punitive damages. Injunctive relief (a court order to stop the unauthorized use) is also a common remedy.

Summary of Protection and Control

The Right of Publicity is a dynamic area of law that serves as a vital tool for protecting the identity and commercial value of every individual. As digital and generative AI technologies continue to advance, the boundaries of this right—and its interaction with existing intellectual property frameworks like the Lanham Act (for false endorsement)—will continue to evolve.

The Right of Publicity is a state-based property right that protects against the unauthorized commercial use of a person’s name, likeness, or persona.
It is distinct from the Right of Privacy, focusing on the economic value of a persona rather than the emotional harm of privacy invasion.
Protected aspects include name, image, voice, signature, and other unique identifying characteristics.
State laws govern this area, with wide variations on scope, duration, and whether the right is descendible (survives death).
The First Amendment provides key defenses, exempting uses for news, public interest, and most transformative artistic expressions.

Take Control of Your Identity

If you are concerned about the commercial use of your persona or wish to license your image properly, consulting with an Intellectual Property Expert is the best next step. Protecting your image is safeguarding your asset.

Frequently Asked Questions (FAQ)

Q: Is the Right of Publicity only for celebrities?

A: No. While it is often zealously guarded by the famous, every person, regardless of their celebrity status, has a right to prevent the unauthorized commercial use of their name or image.

Q: What is the difference between this right and the Lanham Act?

A: The Right of Publicity is a state-law property right. The federal Lanham Act provides a related protection against false endorsement, where the use of a person’s identity falsely suggests they are endorsing or affiliated with a product.

Q: Can I use a celebrity photo from the news in my advertisement?

A: Generally, no. While the photo’s original use in a news report is protected by the newsworthiness exemption, reusing it for direct commercial promotion (advertising) is a common violation of the Right of Publicity, as the purpose changes from news to sales.

Q: How long does the right last?

A: It depends entirely on the state. For living individuals, it lasts for their lifetime. For posthumous rights, some states have statutes that specify a duration, such as 70 years after death in California. Many states, however, do not recognize a post-mortem right.

Disclaimer: This blog post, generated by an artificial intelligence, provides general information and is not a substitute for professional legal advice. The legal landscape regarding the Right of Publicity is complex, state-specific, and constantly evolving. Always consult a qualified Legal Expert to address your specific legal concerns.

Right of Publicity, commercial exploitation, name, likeness, identity, persona, misappropriation, celebrity image, First Amendment, privacy rights, intellectual property, state law, post-mortem rights, Lanham Act, false endorsement, Tort, Property, Civil, State Statutes, Case Law

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