The right of publicity is a relative newcomer to the complex world of intellectual property.
This addition to the intellectual property family has gained traction over the past several decades and is becoming even more relevant in the age of artificial intelligence. Let’s explore what it means, where it applies, and why it matters.
Understanding the Right of Publicity
At its core, the right of publicity protects an individual’s identity from being used for commercial purposes without their consent. This includes:
- Likeness: Using someone’s image or appearance.
- Voice: Replicating or imitating someone’s voice.
- Other Traits: Any identifying feature associated with a person’s identity, such as a signature or unique mannerism.
In simple terms, if a business or individual wants to use your identity to sell something, they need to ask for permission—and usually pay for it.
Where Does the Right of Publicity Apply?
The right of publicity isn’t recognized everywhere, but it’s enforced in several major jurisdictions, including:
- California: Known for its strong right of publicity laws, particularly because of its ties to Hollywood and the entertainment industry.
- Other States and Countries: While not universal, many other jurisdictions enforce similar protections. The specifics, however, can vary widely.
If you’re operating in a region with strong right of publicity laws (and the internet means that you probably are) it’s essential to secure consent before using someone’s likeness or identity.
Why the Right of Publicity Matters
As technology evolves, the importance of the right of publicity has grown dramatically. With tools like AI capable of replicating voices and creating hyper-realistic likenesses, unauthorized use of someone’s identity is easier and riskier than ever.
For instance:
- AI Voice Cloning: Using AI to mimic a celebrity’s voice to endorse a product without permission will likely give rise to liability.
- Deepfake Videos: AI-generated videos that use a person’s likeness for advertising or other commercial purposes can also infringe on their right of publicity.
The rise of AI has made it even more critical for businesses and creators to understand and respect these rights.
The Risks of Infringing the Right of Publicity
Violating someone’s right of publicity can be costly—both financially and reputationally. Consider the following:
- Lawsuits:
Using someone’s likeness without permission can lead to lawsuits, especially in states like California. - Attorney’s Fees:
In many cases (depending on the jurisdiction), the infringing party may be required to pay the other party’s legal fees, even if the harm caused was minor. This makes settling these disputes expensive, even when the initial infraction seemed small. I once defended a company in a right of publicity case where the amount demanded by the plaintiff was relatively small, but settlement was essentially impossible because the attorneys’ fees were many times higher than the plaintiff’s claim.
For businesses and creators, the takeaway is simple: always get explicit permission before using someone’s identity in ads, media, or any commercial content.
Final Thoughts
The right of publicity may not be as well-known as patents or trademarks, but it’s a vital part of intellectual property law. If you’re working with content that involves someone’s likeness, voice, or identity, take the time to secure proper permissions and avoid potential legal headaches.