How would you feel if someone tried to make money from your name or image without your consent? This may sound like an issue that only concerns celebrities and public figures. In reality even those who are not very well-known can experience this type of problem, which is why about half of the states in the US, including Florida, California and New York, recognize a right of publicity.
What Is the Right of Publicity?
The right of publicity refers to an individual’s right to control the commercial use of his or her name, image, likeness or other similar aspects of the individual’s identity. While not protected by federal law, some states do recognize this right.
Is There a Right of Publicity in Florida?
In Florida, the right of publicity is protected by statute and common law. Section 540.08 of the Florida Trade, Commerce, Investments and Solicitations Law prohibits the use of a living or deceased natural person’s “name, portrait, photograph or other likeness of any natural person without the express written or oral consent” of the person.
Courts in Florida also recognize a common law right to sue for misappropriation and invasion of privacy under standards that are “substantially identical” to bringing a lawsuit under Section 540.08.
Florida law does not require that a person’s identity have commercial value in order to bring a lawsuit.
Caveats to Florida Law
There are several limitations to the right of publicity in Florida. For example, Section 540.08 applies to living persons, not business entities. This is also true under Florida common law.
The statute also protects a deceased natural person but only for 40 years after their death. An individual is not required to have exploited their right of publicity during their lifetime in order for them to have postmortem rights. Notably, Florida common law right of publicity does not protect a deceased person.
Special protection is afforded to members of the armed forces, including officers and enlisted members who died from injuries sustained in the line of duty.
Minors may consent to the publication of their name and likeness where no compensation is involved. However, if there will be compensation, the minor or his or her parent or guardian must seek court approval of any contract giving consent.
There are also several statutory exemptions in Florida where the right of publicity does not apply, including use of the name or likeness in connection with:
- A news report or presentation with legitimate public interest. This includes in newspapers, magazines, books, news broadcasts, etc. (Section 540.08(4)(a))
- The resale or distribution of merchandise that the plaintiff already consented to for the initial sale of the product (Section 540.08(4)(b))
- Photos where the person is shown solely as a member of the public and not named or otherwise identified (Section 540.08(4)(c)).
Under common law, exemptions include using the name or likeness:
- For a legitimate public interest
- In an expressive work, such as in a novel, play, song, or film
- Where it does not directly promote a product or service by associating the person’s name or personality with the product.
Florida has a statute of limitations of 4 years to bring a claim under the statute or common law. The statute of limitations starts to run when the first unauthorized use occurs.
The right of publicity differs by state, so it is essential to work with an attorney who understands the law in your area. Contact an experienced attorney if you believe your rights have been violated or you want to ensure you are not violating someone’s right of publicity.
Photo by Aaron Burden on Unsplash
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