Understanding Florida’s Right of Publicity Laws

When you think of the things or property that you own, you may think of your personal property, your money, or maybe your intellectual property. But what about the things that make you who you are—your image, your likeness, or your name?

Like any other property, these things belong to you. And while they may or may not have a tangible value, one thing is clear: if any of them are used without your permission in certain circumstances, you may be owed money.

What Does the Right of Publicity Cover?

As a general rule in Florida, we have what are known as right of publicity laws.

The law generally says that someone cannot use your name, image or likeness, for money, advertising or profit, without paying you for it, or without your permission.

This is the reason why establishments may inform you that you are being filmed or photographed, and that these images can be used for whatever purpose, and also why businesses may make you sign photo releases, giving them permission to use your name and image how they see fit.

Making a Claim

To have a claim for a violation of your right to privacy, you must first show that you are actually identifiable in a picture or video; being one of an unnamed and unidentifiable mass of people in an image isn’t enough.

What is illegal, and what would entitle someone to a claim for damages under the right of publicity statute is where the likeness is being used for money—specifically, for marketing or advertising, or to promote or sell a product. Using an image for artistic or expressive reasons or for news or commentary doesn’t entitle someone to sue for damages.

There must be a relationship to your likeness, and to the product being sold—that is, if you are suing for a violation of your privacy or publicity rights, you must show that your likeness had some commercial value to the other side.

Usually, any form of inclusion in marketing or advertising materials will suffice, but it often isn’t so clear what is or what is not advertising (especially today, with influencer videos often towing the line between artistic content creation, and selling products or marketing).

After Death

Your right to privacy and to benefit from unauthorized publicity also extends after you are gone—you (presumably through your estate or beneficiaries) would have a right to sue should your likeness be used for marketing purposes at any time within 40 years after you pass away.

Damages

Those who feel their likeness has been used can sue for damages, including the value of what any royalty or payment would have reasonably been, had the person been paid for the use of their likeness. In more egregious examples, punitive damages may even be available.

Contact the West Palm Beach commercial litigation lawyers at Pike & Lustig for help with your case today if you feel your name or image have been used or misused without your knowledge or permission.

Sources:

flsenate.gov/Laws/Statutes/2011/540.08

scholar.google.com/scholar_case?case=15300621820639118065&q=408+So.2d+619&hl=en&as_sdt=2,22