Who Owns Your Image? Understanding Your Right of Publicity

You own the right to your image, and the right of publicity gives you the right to license the commercial value of your image. You have the proprietary right to your name and likeness for commercial exploitation and seek statutory damages for unauthorized use of your image, including lookalikes and soundalikes. There are fair use exceptions under common law for transformative, expressive, or parody uses, which vary by state statute. If someone is making a commercial profit from identity misappropriation, you can file a cease and desist or seek a permanent injunction or financial compensation.

What Is the Right of Publicity?

The right of publicity is your legal right to control how your identity is used for commercial purposes such as advertising, including your image, likeness, and name.

“It’s fundamental that the right of publicity is something that all of us have,” says trademark and copyright law 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.”

In the state of Washington, where Crumbow practices law, as in many other states across the country, everyone has been granted a right of publicity — in other words, a property right in the commercial use of their name, voice, signature, photograph, or likeness.

The right, as codified in Washington state law, 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 First Amendment rights. Because this is a property right, it can be asserted by an estate even after the death of the person being represented (known as the post-mortem right of publicity)

Protect Your Intellectual Property

Protect your creations with intellectual property rights. Visit the Super Lawyers directory to find an intellectual property lawyer in your area today.

Find a lawyer today

Who Does the Right of Publicity Protect?

The right of publicity protects everyone — though the issue most often 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.

What Laws Protect the Right of Publicity?

Interestingly, the right of publicity is only a state-level right; there is no federal law. Some jurisdictions rely on common law, while others have state statutes protecting the right, including California, Florida, Indiana, Nevada, New York, Oklahoma, Tennessee, Texas, and Virginia, and Washington.

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.

Get Help with Your Right of Publicity Claim From an Intellectual Property Law Attorney

If you have any concerns about your likeness or name being used without your permission and are considering legal action under a right of publicity law, consider contacting a reputable and experienced intellectual property attorney for legal advice and assistance.

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