privacy so long as the interference is no
greater than that necessary to protect
the public interest.
The right of publicity evolved out of the
right of privacy. Generally, the right of
publicity is the right of every individual
to control any commercial use of his or
her name, image, likeness, voice or
some other identifying aspect. On one
hand, the right of publicity functions
like a property right, allowing a person
the right to profit from the use of that
person’s image or identity. On the other
hand, the right of publicity functions
like a privacy right, protecting the person from unjustified intrusion and
exploitation. This may include barring
or being compensated for any commercial use of the person’s name, image,
voice or likeness.
and consent must be given by the people depicted in the photo before its use.
If any minors are depicted, consent must
be obtained from their parents. Failure
to do so could lead to significant liability. An experienced attorney should be
consulted to prepare appropriate release
agreements
STATE-TO-STATE DIFFERENCES
Privacy and publicity rights are the subject of state laws. While many states
have privacy and/or publicity laws, others
do not recognize such rights or recognize
such rights under other state laws or
common law legal theories such as mis-appropriation and false representation.
What may be permitted in one state may
not be permitted in another. As the
degree of recognition and enforcement
of the rights of privacy and publicity vary
from one state to the next, you should
seek guidance from an attorney knowledgeable on these matters if your right
to use a photograph is not clear.
the right of
publicity
PROPERTY
RIGHTS
Besides the people in a given photograph, you also must be concerned with
the featured property. If a photograph
depicts well-known locations (such as
the “Cloud Gate” sculpture in Chicago or
the Empire State Building in New York
City), or includes third-party trademarks
(for example, people wearing Chicago
Cubs jerseys), then releases should be
sought from the rights-holders of those
locations or trademarks prior to using
the photograph for commercial purposes.
Failure to do so could lead to claims of
false association, affiliation, sponsorship
and/or endorsement. Editorial use of
photos involving such locations and
trademarks generally will not require
prior consent.
When determining if a person’s right of
publicity is implicated, consider whether
the use of that person’s image is editorial
or commercial. An “editorial” use is use
of a photo for news reporting, commentary, criticism and education. Examples
of “commercial” uses of a photo include
advertisements, membership packets,
political information, materials designed
to obtain an economic advantage or ben- Luke DeMarte and Gretchen Hosty Kotleba are mem-
efit, or other materials used to advance a bers of the Intellectual Property Law Practice Group
business, cause or agenda. Care should at Michael Best & Friedrich LLP. DeMarte focuses his
be taken to prevent the mistaken impres- practice on copyright and trademark law. He may be
sion that someone has endorsed a group, reached at(312)222-5795 orlwdemarte@michaelbest.com.
product or service without prior consent. Kotleba concentrates her practice in the fields of copy-
If the photograph at issue is being rights, trademarks, false advertising and unfair com-
used for commercial purposes, the photo petition. She may be reached at (312) 222-6645 or
subjects’ rights of publicity are at issue ghkotleba@michaelbest.com.
