How to Protect Your Image

Guest post by Dave Owens, an attorney who lives in the San Francisco Bay Area.

In 2008 the American Beverage Institute, a restaurant trade association, ran an advertisement in USA Today featuring a mug shot of Lindsay Lohan, which stated that in-car breathalyzers were a good idea for the actress, but not a good idea for the general public. The purpose of the ad was that the vast majority of people know how to drink responsibly and in-car breathalyzers should not be mandatory. As expected, Lohan did not find ad humorous and threatened to sue the American Beverage Institute.

The lawsuit never came to fruition, but it sparked an interesting discussion about the parameters of the right of publicity. For many, how they are perceived becomes more important than reality. In the Internet age when photos and videos are constantly being placed on websites, every individual should know their rights in regards to their image.

What is the Right of Publicity?

The right of publicity is an individual’s right to control the commercial exploitation of his or her name, image, voice, or likeness. With many similarities to intellectual property law and privacy torts, this area of law is based on the principle that an individual has a right to control their image and profit off it as he or she sees fit.

Elements of the Right of Publicity

The elements for the right of publicity may differ state to state. But the following elements are generally required for a right of publicity claim:

  • Use of Identity: A plaintiff has to prove that the defendant used his or her identity. To prevail, the plaintiff must be readily identifiable. For example, a person would have to look at an image and recognize that it is the plaintiff. So if the plaintiff is blurred in the background of the photo, then it is unlikely that a plaintiff will prevail. If the plaintiff is featured prominently in the foreground (like in a close-up), then the plaintiff has a much stronger case.
  • Appropriation of the Image to the Defendant’s Advantage: The defendant must take the plaintiff’s identity and derive a benefit from the use. Generally this means that someone uses the plaintiff’s identity for commercial use. So you’re not going to win if a friend simply posted a photo of you on Facebook.
  • Lack of Consent: Obviously a plaintiff cannot sue if the defendant had permission to use the image (more on this in Defenses). A plaintiff has to show that the use of the image was unauthorized.
  • Injury: The plaintiff must show that the use has caused him or her injury. In some situations the court may presume injury has occurred. Some states may even award statutory damages.

Defenses

There are several defenses to a right of publicity claim. Here are a few that are often raised:

  • First Amendment: There has been only one United States Supreme Court case to directly deal with the right of publicity. In that case the court held, amongst other things, that a state does not necessarily violate the First Amendment for having a right of publicity statute. However, a statute or court decision can still violate the First Amendment. For this reason, most statutes and courts have created exemptions for activities such as newsworthiness, public affairs, transformativeness, and political campaigns.
  • Consent: As stated above, consent is a defense to a right of publicity claim. However, a plaintiff may still have a claim if the defendant exceeded the scope of the agreement. For instance, if a plaintiff agreed to let the defendant use his image on a billboard for only a specific ad, the defendant cannot then use the image for a separate ad. This is why any such agreement should always be in writing and clearly state for what can be used and when.
  • Public Domain: A number of things are in the public domain and thus exempt from a right of publicity violation. For instance, facts are in the public name. So it’s not a right of publicity violation to use someone’s name in a news story. The rights fall also into the public domain when the descendibility rights lapse (more on this later). No one can stop you from using a likeness of Abraham Lincoln because he’s been dead for over 145 years. [Note: this does not mean that someone does not have a copyright in a work featuring Lincoln’s likeness]. Furthermore, Lincoln was a political/public figure, which often limits an individual’s right of publicity. One of the arguments that came up with the Lindsay Lohan/American Beverage Institute ordeal was that they used a mug shot, which was a public record and thus in the public domain. Unfortunately, we will never know how a court would have ruled on this issue.
  • Transformative: A transformative use is one that changes the form or substance of a previous work. Each state has its own standard and thus courts have different tests for whether a use is transformative. For instance, California gives protection “wherever the use of a name is in any way expressive, regardless of the commercial exploitation.” Whereas a state like Missouri has held that if “the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.”
  • Parody: This defense is often asserted in right of publicity cases. The American Beverage Institute would have likely raised the defense. When I was in law school I had a professor, who after he discussed the various standards courts have used, admitted that prevailing with a parody defense usually comes down to whether the judge has a sense of humor.


Where Should You Bring Your Case?

Since there is no federal right of publicity statute, a plaintiff is limited to state statutes and common law (court decisions). If your image is widely misappropriated in several states, you may have a choice where to bring the lawsuit.

Because states have different statutes and/or courts differ on the interpretation of the right of publicity, where you choose to bring the lawsuit may be the determining factor in your case.

For instance, California’s right of publicity statute is very broad and thus would generally be a better place to bring a case than New York, which limits its right of publicity statute purely to advertising.

The right of publicity may also be descendible, meaning that your heirs will have the right to control the commercial exploitation of your image after you die. Michael Jackson did not transfer this right in his will so under California law the rights transferred to the family trust. Indiana is considered to have the most stringent right of publicity statute, in part because it protects an individual’s image 100 years after their death.

What Should You Do?

If your image is being used for commercial purposes on a website, you should first ask the website to remove the material. Currently there is a jurisdictional split as to whether a service provider can be liable for a third party’s action.

If this doesn’t work you may consider bringing a lawsuit. Before doing this you should consider a number of things, including: where you should bring the lawsuit, the amount of damages that you would be able to recover, the costs of litigation, and whether you should hire an attorney.

Dave Owens is an attorney based in the San Francisco Bay Area.  He can be reached at dao1282@gmail.com.

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