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 I, III, 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.