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A plaintiff bringing a misappropriation or right of publicity claim must show that the defendant used attributes of his or her identity that are protected by the law. The law protects other personal attributes or aspects of identity from unauthorized use as well. It is equally unwise to use someone else's name as the title of your website or blog, especially if you host advertisements. Some of the example release forms linked to above are geared toward getting the consent of minors. Some courts have let media defendants get away with using photographs of people who are not actually discussed in the article in question. The First Amendment and the laws of many states also protect your use of someone's name or likeness in creative works and other forms of entertainment. § 8316(e)(2) (link is to entire code; you need to click through to title 42, part VII, chapter 83, subchapter A, and then choose the specific provision); Wash Rev. In other states, the courts look at the creative or artistic work in question and decide on a case-by-case basis whether the First Amendment values at stake trump the plaintiff's rights of privacy and publicity. This doctrine permits TV news shows to use "teaser" ads including images of people reported on during the main program, and publishers to create book jackets and advertisements for unauthorized biographies containing the name or photograph of the book's subject. The court noted that "New York courts have consistently held that the incidental advertising exception applies to all 'news disseminators,' not just newspapers and magazines." There is no reason to believe courts in other states would not reach a similar result.

Usually, this means showing that the defendant used the plaintiff's name or likeness. For example, courts have held that use of a celebrity's voice can violate the right of publicity. You can be liable even without creating a false sense that the person in question endorses your product or service; the key is that you are exploiting the plaintiff's identity to drive traffic or obtain some other commercial benefit. Keep in mind that people giving you consent can revoke (i.e., take back) that consent anytime before the use of their name or photograph takes place. For instance, the New York Court of Appeals held that a magazine lawfully could use the photograph of a large family to illustrate its article on a research study about caffeine and fertility, even though the family did not participate in the study. Included in this category are things like novels that include mention of real-life figures, historical fiction, movies based loosely on real-life events, "docudramas," works of art that incorporate an individual's photo or image, and acts of parody directed at an individual. See State Law: Right of Publicity and Misappropriation for details. One court has held that this doctrine applies to online activities as well. So, for example, if you write an article about a celebrity, you should be able to use that celebrity's name and image sparingly for purposes of promoting the article.

But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial.

There are two distinct legal claims that potentially apply to these kinds of unauthorized uses: (1) invasion of privacy through misappropriation of name or likeness ("misappropriation"); and (2) violation of the right of publicity.

Use of someone's name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff's identity and a matter of legitimate public interest. No Consent: The plaintiff must establish that he or she did not give permission for the offending use. Note also that the Supreme Court has recognized that state law may protect a celebrity's right of publicity in the content of his or her unique performance. For example, the New York statute only covers "name, portrait, picture or voice," N. The meaning of "exploitative purpose" differs depending on whether we are dealing with a right of publicity or a misappropriation claim: Exploitative Purpose: Right of Publicity The right of publicity is the right of a person to control and make money from the commercial use of his or her identity. When using photographs that you did not personally take, you need to worry about copyright law in addition to name or likeness issues. Although the book itself dealt with a newsworthy topic, the author and publisher could not use the woman's photograph on the cover because she was never mentioned in the book. To advertise its service, the company took out a full page advertisement in featuring a photograph of Stern in leather pants which exposed his buttocks.

With the limited exception for "incidental advertising use" discussed below, you need to get consent for commercial uses like these. On the other hand, simply using someone's name or likeness in the process of expressing your opinion is probably safe, especially given the exception for news and commentary discussed below.

It is mostly important for you to understand the legal principles that are common to both claims; we will point out relevant differences below and on the state pages when appropriate.

You might be familiar with the now-famous case of Alison Chang, which is a good example of a potentially unlawful use of someone's name or likeness.

In September 2007, Chang's parents filed a lawsuit in state court in Texas against Virgin Mobile Australia and Creative Commons.

Virgin Mobile Australia obtained a photograph of Chang from Flickr, where is was posted with a CC "Attribution" license, which gave Virgin Mobile permission to use the photograph in a commercial setting so long as it gave attribution to the photographer who took the photo.




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