What Is The Right Of Publicity In Your Likeness?
You may not know it, but you have a right to your own image, likeness, and name. That may not mean much to you, if you’re not famous—after all, who would pretend to be you, or use your image without your permission? But this right to publicity actually is important for business owners and individuals to understand.
What the Right Includes
You have the sole right to use, disseminate, profit from, or publish your own likeness, picture, or anything that looks like you, or your own name. There is some debate as to whether you have a similar property right to your own voice, but it is likely that you have that as well.
It is illegal in Florida for anybody to use your name, image, or likeness, in public for the purpose of profit for advertising or trade—in other words, for any business related purpose. A business must get consent from others to use their name and likeness, although that consent can be written or oral.
Damages for Misusing Your Likeness
The use of your name or likeness must have value; that is, it is not enough that someone accidentally included your photo in a brochure somewhere, but rather, it must be shown that using your particular name or image helped promote a product or company and that your name or image actually had value to the company that used it without permission.
Damages for Misuse
If someone’s name, likeness or image is used without their permission, they can sue. Not only could they obtain an injunction against the company disseminating their likeness, but they could obtain any amounts that would have been a reasonable royalty amount. The statute also allows for someone to obtain punitive damages if it is found that their image was used without their permission and for business purposes—one of the rare occasions when punitive damages are specifically allowed to be collected in an action.
Exceptions to Misuse
There are exceptions for when your name or image is used for the media or for purposes that wouldn’t be considered to be advertising.
Additionally, first amendment issues can arise—certainly someone could use your image if they wanted to make a valid point about their opinion of you (within the limits of defamation law, of course).
You may not think you’d ever violate this law, but there are many times when you may want to take a picture of your happy office doing their work, and then put it on your advertising brochure, or on your social media feed. However, you never obtained consent (usually in the form of photo releases) to do this.
In today’s age, any releases that you require others to sign, allowing you to use their image or likeness, should explicitly provide permission for their likeness to be used online, in blogs, podcasts, social media, and the multitude of other digital and electronic platforms where your business may have a presence.
Questions about digital privacy, or how to use digital content legally? Call the West Palm Beach business litigation attorneys at Pike & Lustig today.