Privacy and Publicity: The Basics
A person has rights over the use of their name, likeness (image), and personality. In the United States these rights are categorized as privacy rights and publicity rights. Generally speaking, publicity rights are more important for an artist to know about. But privacy rights and publicity rights are often spoken about together, so we review both. The key point to remember is an individual has strong rights to protect their name, image, likeness, personality and voice when it is used for advertising.
Privacy rights protect the ability of a person to control use of their image, and to prevent unauthorized or intrusive uses of their image. For example, art that advertises a product and uses an image of an individual that was taken of them within their home and without their consent would violate that individual’s right to privacy. As public figures, politicians have a less comprehensive right to privacy. This is not to say politicians don’t have any privacy rights, but because they have put themselves in the public spotlight, they are less able to argue that photos in general are intrusive. A person’s privacy rights end when that person dies.
Publicity rights (also called personality rights) refer to a person’s control over the commercial value of their image, likeness, and personality. This right stems from state law, not federal law, and it generally applies to advertising and merchandising. Unlike privacy rights, publicity rights do not end when a person dies and may be passed to their estate.
Most controversies in this area deal with improper use of an individual’s publicity rights. Generally, most controversies occur with respect to celebrities, since they commonly use their image and likeness for commercial benefit in films, advertisements, and endorsements. Politicians do not typically use their image to sell products, but because they are public figures, their likeness may in some cases be used on products sold by others. But artists and other people cannot use a politician’s image completely free of limitations. When the image is used for commercial gains, courts must balance the First Amendment rights of the artist with the politician’s publicity rights.
To do this, courts ask whether the use of the image is for a commercial purpose. An individual’s likeness and image cannot be used to promote a product without consent. For instance, selling a t-shirt that implies the president endorses the product violates his or her publicity rights; this includes selling a t-shirt bearing the president’s image without consent. Yes, all those t-shirts sold on the street with the President’s image are technically illegal. But it is so difficult to enforce this type of publicity right that most politicians don’t bother, especially when the free publicity works in their favor. And selling a t-shirt with a caricature of the president does not violate that individual’s publicity rights because caricature includes a significant degree of original expression, along with the public figure’s likeness, and this original expression is protected by the First Amendment.
So how does a court determine whether the art is for commercial purpose? Many courts ask whether the art is transformative, or if the art is just representational. A still photo of a public figure is representational, but the caricature of the photo is transformed or substantially changed. If the court finds the art is transformative, it is probably protected. This area of case law is exceedingly gray and depends on the circumstances and context of the image. For instance, courts often take into account the medium on which the art appears: images in newspapers and magazines receive significant deference, but mugs, t-shirts and other “product” type objects are less likely to be protected.
Finally, do not confuse publicity rights with copyrights. Copyrights differ from publicity rights (and privacy rights) because they cover the artist’s intellectual property rights in the art, while publicity rights refer to the subject of the art. Also, copyright law is based in federal law, not state law. For more information, see the US Copyright Office page and our discussion of sampling and appropriation[link].
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