Publicity & Privacy

Posted by | December 15, 2010 | General | 2 Comments

Yesterday, I wrote about the Section 2(c) refusal to register three marks that referenced President Barack Obama without his consent.  Today I will explore the area of law that protects each of our likenesses from being used commercially without our consent — the right of privacy and right of publicity.

Whether big or small, famous, infamous, or not known at all, each one of us has rights that enable us to prevent others from using our resemblances without our consent.

Right of Privacy

Although there is no express “right of privacy” mentioned in the Bill of Rights or elsewhere in the US Constitution, the IIII, IV and V Amendments each protect an aspect of individual privacy, as does the XIV Amendment.  Since the 1920’s the US Supreme Court has enforced a privacy right under the Constitution, one Justice Brandeis referred to as, “the right to be left alone.”

Federally, the Federal Trade Commission enforces various statutory rights to privacy.  States also may have laws regarding privacy, including invasion of privacy, and false light.  Most states also have at least some form of privacy laws that specify certain information that may not be revealed, such as bank records, school records, social security numbers, and the like.

Right of Publicity

The first right of publicity ruling was issued by the 2nd Circuit Court of Appeals court in 1953.  In that case, the court ruled that “man has a right in the publicity value of his photograph i.e., the right to grant the exclusive privilege of publishing his picture.”  In 1977, the US Supreme Court heard its only privacy case to date, about human cannonball named Hugo Zacchini.

Zacchini sued a TV station that aired his performance without his consent, claiming that people would not come see his act if they could watch it for free and the Court agreed!  More recent cases have involved sound-alike vocals, and even robots!

The right of publicity is governed by state law, and not all states have right of publicity laws.  The right of privacy laws that exist often cover similar ground — the right of each individual (whether famous or not) to determine how their name, image or likeness (in essence, their resemblance) is used commercially.

Brand Geek Takeaway: Beware of the right of publicity!  If you want to use someone’s resemblance to promote your businesses, be sure that you have their consent.  Pay special attention when purchasing stock images since those agreements may state that no right of publicity consent or waiver has been obtained from any people depicted in the images, in which case you should not use them commercially.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.


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