Home /Blog/What to Know About Bringing a Right of Publicity Case Against Photographers
September 22, 2023 | CaliforniaLitigationNew York

What to Know About Bringing a Right of Publicity Case Against Photographers

post image
Author(s)
Olivia Loftin

Associate Attorney

Ellie Sanders

Graduate Law Clerk

Celebrities and regular individuals alike possess a legal right called the ‘right of publicity,’ which safeguards their name, image, and other distinctive personal attributes from unauthorized commercial exploitation.  This right enables any person to take legal action against those who profit from using their name and likeness without consent.  Celebrities are especially affected because their identities can yield substantial profits for others.

What is the right of publicity?

The right of publicity allows individuals to prevent others from commercially exploiting their name and likeness without consent.  

  • In California: The Right of Publicity, as defined in California Common Law and Civil Code section 3344, prohibits the commercial use of another person’s name, image, or likeness without consent, allowing for the collection of penal damages.
  • In New York: New York recently amended its law to make it easier for people, or their estates, to recover for violations of their publicity rights. The New York law prohibits a party from using another person’s name, likeness, voice or image ‘for advertising purposes or for the purposes of trade’ without that person’s written consent.
  • Elsewhere: Similar statutes exist in other states to protect individuals from the unauthorized commercialization of their identity.

This right was first established in a 1953 Supreme Court case, Haelen Laboratories vs. Tropps Chewing Gum, Inc., where the Court held that the right of publicity was based on preventing the unauthorized use of a person’s name or likeness for commercial gain.  In that case, the Court distinguished the right of publicity from privacy rights.  Privacy rights, which vary by state, typically include invasion of privacy, intrusion upon seclusion, public disclosure of private facts or false light.

Publicity rights are also distinguishable from ownership of an underlying copyright.  Copyright safeguards the creator’s property rights, while publicity rights protect the individual’s interests.

Can you make a profit using another person’s likeness without their consent?

In some cases, yes.  While the right of publicity broadly shields celebrities from commercial exploitation, there are limitations as to how far the right extends.  The U.S. Constitution’s First Amendment protects freedom of speech and expression.  The First Amendment operates as a limit on right of publicity claims, particularly in cases involving creative expression or newsworthy content.  There is a tension between an individual’s right of publicity, and another individual’s right to freedom of expression.  In such instances, the First Amendment may shield individuals from lawsuits if there’s a reasonable connection between using a person’s likeness to report the news or public issues.

Case Study: If a photographer uses my photograph to sell merchandise, can I sue them for violating my right of publicity?

In 2021, Jay-Z sued photographer Jonathan Mannion for exploiting his name and image without permission.  Mannion has shot hundreds of photos of Jay-Z, including the cover art for Jay-Z’s 1996 album, Reasonable Doubt.  Mannion was selling prints, shirts and other merchandise on his website without Jay-Z’s consent, earning a considerable profit.

Jay-Z argued that those sales constituted a violation of the rapper’s right of publicity, because Mannion was commercially exploiting Jay-Z’s likeness without consent.  On the other hand, Mannion argued that his First Amendment rights allowed him to sell prints of his copyrighted work.

As of January 2023, Jay-Z and Jonathan Mannion were engaged in settlement discussions and asked the judge to vacate the trial.  

Conclusion

The right of publicity is a crucial legal protection for individuals, and particularly for celebrities whose identities hold significant commercial value.  While photographers may own copyrights to images, these rights are distinct from publicity rights owned by the subjects.  If you have questions about how this may apply in your situation, consider reaching out to our experienced attorneys for a consultation.

 

Photo by Brandon Erlinger-Ford on Unsplash
Share This