You are probably already aware of the risks of inaccurately portraying real people in online and print publications, such as advertisements, websites, and newsletters. You could be sued for defamation. So, you may think: As long as my company portrays any real people accurately, we are safe; we will not be liable. After all, truth is an absolute defense to defamation.
Unfortunately, potential liability is not limited to claims for defamation. You should also be aware of claims for violation of the “right of publicity.” While the right of publicity varies from state to state, in general it protects an individual’s name, likeness, image, voice, and other identifying features, and it is violated when someone uses an individual’s identifying features for commercial purposes without the individual’s permission. The right of publicity would likely come into play, for instance, if you created a movie or a book based on a real person without first obtaining that person’s permission. In some states, the right of publicity can even extend after a person’s death.
You obviously need to be aware of the right of publicity if you are a content creator, such as a writer, artist, or influencer, or if you are a media company. But the right of publicity can also be relevant to any company or nonprofit. For example, it could come up if you took someone’s photograph from a gala or fundraising event and, without the person’s permission, used the photograph on your company website or in a company newsletter. It could also arise if you were to make a television commercial in which you briefly interviewed people on the street about your product, but you did not obtain their permission to use the interview in a commercial. As a third example, the right of publicity would be implicated if you used a person’s photograph and/or name in connection with an online or print product review.
While defamation focuses on protecting a person’s reputation, the right of publicity focuses instead on an individual’s right to exploit and monetize their own identity. As a result, while you can avoid a defamation lawsuit by accurately portraying real people, this does not protect you from a suit for violation of the right of publicity. In fact, the more accurately you portray a person by, for instance, using the person’s real name, photograph, and voice, the stronger that person’s case for violation of the right of publicity.
So, what can you do to avoid potential liability for violation of this right? One option is to obtain permission from individuals before using their names, photographs, and other identifying features. Another option is to anonymize. For instance, when printing a customer review, do not use the individual’s photograph and real name. Instead, identify the individual only as “Customer #1.”
This article is intended to serve only as an introduction to the right of publicity. Because the right varies from state to state, it is best to consult an attorney if you have questions about the finer points of this topic. And it may not be enough to evaluate only the law of your home state, because you could be sued under the laws of another state where the plaintiff lives. But at least now, you have a general awareness of the risks of using an individual’s identifying features without their permission.
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