Photographs of people appear everywhere – on magazine covers, in television commercials and even on the Internet. In most circumstances, a person’s photograph or “likeness” may not be used by another for profit without that person’s consent.
When unauthorized use does happen for commercial purposes it is commonly referred to as “misappropriation.” Although this is technically an invasion of a privacy interest, attached to each person’s name and likeness are intellectual property rights.
Characteristics that are unique to people, or their “likenesses,” include:
For example, if someone uses your name without permission to endorse a product in an advertisement and you have no connection with the product, it may be misappropriation.
Also, there are instances where the use of a person’s likeness, although not for financial gain or commercial purposes, may give rise to a claim of misappropriation. For example, your photograph is used in an article about drug abuse, but you actually are not a drug user.
Fame is No Factor
A person does not have to be famous in order to have a claim for misappropriation. A non-celebrity has just as much of a right to prevent unauthorized exploitation of his or her person as a celebrity does.
Acts in Public
If a person’s name or photograph is used appropriately in a context that is a matter of public interest or is public, there is no misappropriation.
For example, if photographs or video clips of you skiing at a popular ski resort appear in a documentary about skiing, the creator of the documentary does not necessarily need to obtain authorization from you to use the photographs or video clips. The fact that you were skiing in a public place further diminishes any privacy interests you may have.
Accordingly, the President of the United States would have difficulty establishing misappropriation for publishing pictures of him in public. So it is generally permissible to use a person’s name and likeness without the person’s consent in the context of news, sports broadcasts or political campaigns.
What damages are recoverable for misappropriation of a person’s likeness? Usually the profits generated by the unauthorized use are recoverable. Punitive damages, as well as costs and attorneys fees, may also be permitted.