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February 15th, 2004
Using Someone in Advertising…Without Consent?
For years, the media has reported on high profile lawsuits involving allegations that celebrities were used in advertising, or for other commercial purposes, without permission. Even after the Dustin Hoffman, Tiger Woods, and Vanna White cases, to name a few, many advertisers, agencies, and production companies still seem to be confused about the "right of publicity."
What is the "right of publicity"? Does it just apply to celebrities? How do you stay out of trouble when you’re planning to use someone in advertising?
What is the right of publicity?
At its most basic, the "right of publicity" is the right to prevent others from using you for commercial purposes without your consent. New York, for example, prohibits the use of a person’s name, portrait, picture, or voice for purposes of advertising or trade without first obtaining written permission.
But it’s never that simple. Not only is the law governing the right of publicity different depending on what state (or country) you’re in, but people continue to fight about how far the right extends.
How can you avoid claims?
With the law continuing to evolve, it’s often difficult to know when you might infringe on a person’s right of publicity. While space limitations prevent me from addressing all of the complexities, as well as the exceptions to when permission is required, here are some simple things you can do to avoid claims.
Get permission from everyone you use in advertising, not just the celebrities, unless you know that your use falls under one of the exceptions. That means you should ordinarily get consent from regular citizens and politicians, too. Even the White House has been known to complain when a President has been used in an ad without permission.
Many states protect people long after death, and the extent of protection varies widely. If you’re planning to use a dead person in advertising, talk to your lawyer about what your options are. Many estates license the rights to use deceased celebrities in advertising and actively pursue claims for unauthorized uses.
Just because you can’t see the person’s face doesn’t mean that you shouldn’t get a release. Even if you can only see a person’s back, or shadow in a car window, or pose, for example, he or she may still have a claim.
Get permission for every full name that you use. If you make one up, you just might hear from someone with that name. You should also watch out for first names, nicknames, and even former names, if they could be associated with a particular person. Celebrities have sued because of the use of look-alikes, sound-alikes, and other representations of themselves in advertising, as well as for the use of the characters they previously portrayed. Think twice before you do anything that conjures up a celebrity.
Get releases in writing, and make sure that they spell out your rights. You don’t want people saying later on that they didn’t realize how they would be used, especially if you are planning a campaign that may be controversial. You also don’t want people saying that you only had the right to use their pictures, but not their names.
There have also been fights over the use of people without consent in other media as well, such as in artwork and comic books. Just because you’re planning to use someone in a manner that does not involve traditional advertising, don’t assume that the use won’t lead to trouble.
So, if you’re planning to use or reference people, without getting permission, it’s wise to get legal advice early on, before you, too, find yourself in the courtroom.
This article first appeared in the February 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
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