Right of Publicity
What Is Right of Publicity?
In most states recognizing the right of publicity, the right of publicity is a property right, and under the right of publicity laws in some states, the right of publicity for an individual can survive the individual’s death and is enforceable by the deceased individual’s heirs, estate, or other authorized person or business entity. For example, under Florida law, a deceased person’s right of privacy is enforceable against unauthorized users of the deceased person’s name, image, and likeness for 40 years after his or her death.
In some states, the right of publicity is created and recognized by state statute, while in the remainder, the right of publicity is recognized under state common law, i.e., state case law, or the precedent of state court decisions. Rights and legal remedies related to violations of an individual’s right of publicity are often in addition to any rights and remedies pertaining to an invasion of privacy.
Which U.S. States Have Right of Publicity Statutes Protecting This Right for Individuals?
- New York
- Rhode Island
The following U.S. states recognize a person’s right of publicity under their state common law:
- New Jersey
How Does Florida Law Protect an Individual’s Right of Publicity?
Express written or oral consent to such use of a person’s name, portrait, photograph, or other likeness may only be given by: (i) the person; (ii) another person or business entity authorized in writing by such person to license the commercial use of his or her name or likeness; or (iii) if such person is deceased, any person or business entity authorized in writing to license the commercial use of the deceased person’s name or likeness, or if no person or business entity has been so authorized, then by any surviving spouse and/or any surviving child of the deceased person.
A person who suffers a violation of his or her right of publicity (or other person or business entity authorized to license such person’s name or likeness by contract or pursuant to the Florida right of publicity statute) may file a lawsuit against the unauthorized user of his or her name or likeness seeking damages and injunctive relief.
What Types of Damages May Be Awarded to a Person Whose Right or Publicity Is Violated?
Under What Circumstances Can a Person’s Right of Publicity Not Be Enforced?
In addition, under Florida law, a person’s right of publicity does not apply, and cannot be enforced, in connection with any photograph of such person solely as a member of the public and where such person is not named in or in connection with the photograph’s use.
Other exceptions to the general enforceability of the protections provided by the right of publicity statutes and laws may apply in Florida and other states.
For more information concerning how to protect and enforce your right of publicity against unauthorized commercial users of your name, image, or likeness, please contact one of our attorneys.