Law: Publicity

• Publicity Laws

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DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.”
— Restatement (Second) of Torts, 652C, American Law Institute.

Publicity is similar to copyright, where a person’s identity is the artwork, and emphasis is placed on the degree of commercial use.

Commerce

It’s generally OK to use a photograph of someone for fair use purposes such as personal viewing, news, education, information, satire, politics, and works of art.

[The unauthorized publication of a photo of a non-celebrity is] “the price every person must be prepared to pay for a society in which information and opinion flow freely.”
— Arrington v New York Times, 1982.

You’re generally free to use photos that you take of politicans for commentary purposes when such people have chosen to enter the public discussion.

“one who enters into the political arena essentially waives much of her rights of publicity and privacy.”
— Jeremy T. Marr, Constitutional Restraints on State Right of Publicity Laws.

But advertising and purposes of trade are different. The test is if the public is misled in a relevant way, creating a false or misleading impression that a celebrity recommends, approves, licenses, endorses, or has some assocation with certain products or services for sale.

“Courts apply a balancing test to determine whether the First Amendment preempts the right of publicity where the unauthorized use is commercial, such as in an advertisement or on actual merchandise.”
— Jeremy T. Marr, Constitutional Restraints on State Right of Publicity Laws

Personality rights have two types: privacy and publicity. Privacy is the right to be left alone and the cost is emotional, whereas publicity is the right to license your likeness and the cost is commercial value, similar to copyright and trademark.

“While damages in privacy cases are measured by emotional distress, damages in publicity cases are measured by the commercial injury to the business value of personal identity. Infringement damages are therefore determined by the fair market value of the plaintiff’s identity, the infringer’s profits, and damage to the licensing opportunities for the plaintiff’s identity.”
— Mark Roesler, chairman and CEO of CMG Worldwide