Don't Let Your Face Be Stolen

Imagine riding your bike past a bookstore in Seattle. And to your surprise, they have T-shirts and mugs with your face on them. You’ve never authorized any use of your image, nor have you ever been into the bookstore. What can you do?

In the state of Washington, everyone has been granted a right to publicity—or, a property right in the use of his or her name, voice, signature, photograph, or likeness. This was codified into law by the state legislature, and it allows individuals to control or be compensated for anything that uses their likeness in a commercial manner. This is especially important because it supersedes some of the rights guaranteed by the First Amendment; because this is a property right, it can be asserted by an estate even after the death of the person being represented.

This issue generally affects celebrities and professional athletes whose likenesses have been used without their permission. Courts have gone so far as to analyze right to publicity cases under a celebrity analysis. Basically, they use a balancing test, wherein they evaluate the economic value of the work derived primarily from the fame of the celebrity depicted. The case most famous for this involved EA Sports video games and college athletes.

“It’s fundamental that the right of publicity is something that all of us have,” says copyright and trademark attorney Robert Cumbow. “All of us should have a remedy if we see our picture in an advertisement for a product that we have not endorsed, and it has been done without our permission. We should all have this right—not just celebrities.”

Interestingly, the right of publicity is only a state-level right; there is no federal law. So, some states have statutes, and others rely on common law. In New York, for example, the right of publicity is part of the right of privacy rather than a property right. As Cumbow explains, “This means that it is a personal right, and cannot be passed on after someone’s death the way property can.”

Some years ago, Jimi Hendrix’s estate sought to enforce the right of publicity to stop others from using his likeness commercially. The estate invoked the Washington’s Personality Rights Act. However, the court held that Jimi Hendrix was not a citizen or domiciliary of Washington at the time of his death—he was a domiciliary of the state of New York.

If you have any concerns about your likeness—or even the likeness of a deceased relative—being used without your permission, contact a reputable and experienced intellectual property attorney.

For more information on this area of law, see our intellectual property overview.