Right of Publicity: Your Legal Protections

The right of publicity developed through landmark cases that established the principle that individuals own the commercial value of their identity. Early cases recognized that celebrities and public figures invest significant resources in building their public personas and deserve protection against commercial exploitation. Courts determined that the right of publicity could be inherited and transferred, making it a valuable property right. New York courts have applied this doctrine across various contexts, from advertising to merchandise and digital media.

New York has codified aspects of the right of publicity through statutory provisions. New York Civil Rights Law § 50 and § 51 provide statutory protection against unauthorized use of a person's name, portrait, picture, or likeness in advertising or trade. These statutes create both civil liability and potential criminal penalties for violations. The statutes apply broadly to protect individuals from commercial exploitation without consent, establishing clear legal standards for what constitutes prohibited use.

The right of publicity protects various aspects of a person's identity that possess commercial value. A person's name represents the most obvious protected element, as names are uniquely identifying and commercially exploitable. Likeness and photographs constitute core protected elements, particularly when they are recognizable and distinctive. Voice and distinctive sounds, such as a celebrity's recognizable laugh or catchphrase, receive protection under the right of publicity. Additionally, distinctive gestures, mannerisms, and other recognizable characteristics that identify a specific individual are protected. Digital representations and avatars that capture a person's distinctive features may also fall within the scope of protection.

The right of publicity generally requires that the unauthorized use occur in a commercial context. Use in advertising clearly qualifies as commercial use, as does use in promoting products or services. Entertainment products, including films, television shows, and music, may constitute commercial use depending on their nature and context. Merchandise bearing a person's name or likeness represents straightforward commercial exploitation. News reporting and editorial use typically do not constitute actionable commercial use, as they serve informational rather than commercial purposes. The distinction between commercial and non-commercial use remains crucial in determining whether a violation has occurred.

Courts balance the right of publicity against First Amendment protections for free expression and artistic speech. The use of a person's identity in news reporting, commentary, or criticism generally receives First Amendment protection despite commercial publication. Artistic works, including films, television shows, and literature, may receive First Amendment protection even if they use recognizable individuals, depending on the transformative nature of the work. The transformative use doctrine examines whether the work adds something new with further purpose or message beyond the mere commercial exploitation of the person's identity. Courts apply a case-by-case analysis to determine whether First Amendment protections outweigh right of publicity claims.

Obtaining proper consent from the individual whose identity will be used provides the most straightforward way to avoid right of publicity violations. Consent must be informed and specific, addressing the particular use contemplated. Licensing agreements establish clear terms regarding how an identity may be used, for how long, and in what contexts. Many entertainment, advertising, and merchandise companies maintain detailed licensing agreements that specify permitted uses. Failure to obtain necessary consent or exceeding the scope of granted consent can result in significant liability. Legal counsel should review all licensing arrangements to ensure compliance with New York law and protect against infringement claims.

Victims of right of publicity violations can recover actual damages, which may include lost licensing fees or profits from unauthorized use. Statutory damages provide an alternative to proving actual damages, allowing recovery of specified amounts per violation. Punitive damages may be available in cases involving willful or particularly egregious conduct. Injunctive relief can prevent continued unauthorized use and remove infringing materials from circulation. Attorney's fees and costs may be recoverable in successful cases. Courts may also order an accounting of profits derived from the unauthorized use, allowing the injured party to recover all benefits obtained through the violation.

The digital age presents unprecedented challenges for protecting the right of publicity against new forms of exploitation. Deepfake technology, which creates synthetic media using artificial intelligence, raises complex questions about identity protection and consent. Social media platforms enable rapid unauthorized dissemination of images and identity elements across global audiences. Digital avatars and virtual representations of real people create novel questions about the scope of right of publicity protection. Civil rights considerations intersect with right of publicity protections in digital contexts. Individuals and businesses must stay current with evolving legal standards as courts develop doctrine addressing these emerging technologies and platforms.