Right of Publicity
The right of publicity is the right of an individual to control the commercial use of his or her name, image, likeness, or other similar aspects of the individual’s identity.
In the US, the right of publicity is right based in state law (rather than federal law). About half of the states in the US recognize a right to publicity. New York is one of them.
In New York, the right of publicity is codified by statute in New York Civil Rights Law Sections 50 and 51.
Subject to several exceptions addressed below, Section 51 provides protection for a person’s “name, portrait, picture or voice” which is used within New York “for advertising purposes or for the purposes of trade” without the written consent of that person.
Section 51 provides for both injunctive and monetary remedies (primarily for emotional distress), as well as occasional exemplary (also known as punitive) damages subject to a jury’s discretion if the use was done knowingly and with knowledge that the subject did not consent to the use, and if there is an objective to deter future similar conduct. Like defamation claims in New York, right of publicity claims in New York have a relatively short statute of limitations, which is only one year.
Note a few caveats to the New York law:
- The right applies to persons and does not protect business entities (although entities may have recourse under other bodies of law).
- Voice was added to the scope of protection of Section 51 in 1995.
- The scope of protection regarding one’s “portrait” or “picture” has been held to include sculptures, mannequins, and other three-dimensional “likenesses.”
- New York’s right of publicity does not survive death.
Additionally, there are several exceptions to the scope of “advertising purposes” and “purposes of trade,” both in the statute and in developed case law, including:
- Professional photographers are exempt from suit under Section 51 by the subjects of their work due to the exhibition of the photographer’s work in or about the photographer’s establishment, unless the photographer first receives written objection by the person portrayed and the photographer continues to display it despite the written objection;
- The use of an author’s name, in connection with the exploitation of the work of that author, is permitted (i.e., if a publisher otherwise has permission to exploit the work itself, the author cannot bring a right of publicity claim for use of his or her name as part of the exploitation);
- The use by owners of copyrights in sound recordings otherwise properly exploiting the sound recordings with permission (e.g., like the above, if the copyright owner her permission to exploit the sound recording, the performer cannot bring a claim alleging a right of publicity violation due to exploitation of the performer’s voice);
- Using a person’s identity in connection with products, if the person at issue manufactured or sold those products under their own identity;
- Use in connection with a “newsworthy” article (even if the publisher intends the use to attract advertising or promote revenue). “Newsworthiness” is interpreted broadly; however, one limitation of the newsworthiness exception is if there is a “severe” degree of falsity or if the publisher acted with “actual malice” (which exceeds the scope of this webpage).
Please bear in mind that, though one use may not constitute a right of publicity violation, it is possible, based on the facts, that a claim under another body of law could be made. Please also note that, when the use is online (or otherwise in multiple states), this issue may become far more complex, and various additional factors exceeding the scope of the above must be considered.
If you would like a better understanding of New York’s right of publicity law – either because you want to prevent a claim in the future, you feel you have a claim, or you want to defend against an existing claim – please contact an experienced right of publicity attorney who may be able to help.
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