The Right of Privacy is a Thing

There is a species of intellectual property to which many entrepreneurs give little thought – the Right of Publicity. The Right of Publicity is a person’s ability to control and profit from the commercial use of their name, likeness and other recognizable aspects of their person or persona (or, in short, a person’s identity). Elon Musk, for example, has the right to decide whether his name or face will appear in advertising for a product or service. Individuals have the exclusive right to license use of their identity for commercial purposes.

The Right of Publicity is a subspecies of the Right of Privacy. The Right of Privacy has its basis in the U.S. Constitution, even though it is not explicitly stated in the text. A judicial decision in the late 19th century recognized this right as the “right to be left alone”. The right to personal autonomy was later enshrined in the 14th amendment. In addition to the development of the Right of Privacy as a constitutional right, a body of statutory law has developed protecting the Right of Privacy, including protecting access to personal information. Indeed, this law is still developing, especially in the context of the internet and internet-based applications, with the Federal Trade Commission being the principal enforcer of the Right of Privacy on the Federal level.

The Right of Publicity is explicitly recognized in only about half of states. The lack of explicit recognition does not mean, however, that the Right of Publicity is unenforceable in these states. Some states protect the Right of Publicity though the law of unfair competition. In these states, it is a tort to misappropriate an individual’s identity to “pass off” a product as endorsed or produced by that individual. Other states recognize the Right of Publicity through the state’s body of judicial decisions, known as a state’s “common law”.

Entrepreneurs should be aware of the Right of Publicity as they develop their marketing programs. Not limited to formal advertising, the Right of Publicity may extent to social media posts and other less formal methods of advertising. Using a picture of a locally famous person in a commercial way in your FaceBook or Instagram feed may violate that person’s rights in the same way that using Elon Musk’s identity to sell your products will.

The Right of Publicity is different from both trademark and copyright law, although each type of law protects against commercial misappropriation of a legal right belonging to someone else. We note here that, in certain cases, it is possible to protect an aspect of a person’s identity as a trademark. Those instances are a small subset of the general Right of Publicity that applies broadly to all persons with respect to all recognizable aspects of their identities.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.