What is the Right of Publicity?
The right of publicity is a legal concept that prevents the unauthorized use of an individual’s identity for commercial purposes. Depending on the state, identity could be defined to include one’s name, likeness, voice, signature, and a number of other identifiers. Unlike a person’s privacy right, which is personal to the individual, the right of publicity is considered a property right. This means it can be transferred or inherited.
Each state decides for itself
Unless there is a federal law in place, which is the law of the land, each state gets to enact its own law. There is no federal right of publicity law. Some states have statutory law regarding rights of publicity; some have common law, which is court-made law, and some states have no law protecting one’s publicity rights. States like Maine and Colorado have an invasion of privacy law. Some states choose to make the right of publicity law applicable only to the living, and some states protect a person’s right for a period of time after they die. Each state is autonomous. As one can imagine, California and New York are among the states with both legislative and common law rights of publicity,
California
California provides robust protection under both statutory and common law. The state’s statutes cover both living individuals and deceased personalities, granting a 70-year postmortem right of publicity. This means that a deceased person’s identity can still hold commercial value and be protected long after their passing.
New York
New York, too, offers protection, albeit with some differences. Historically, New York recognized the right of publicity primarily through privacy laws. However, recent amendments have expanded postmortem rights, which now extend to 40 years after death. The law applies to those domiciled in New York at the time of their death and whose identity had commercial value.
Practical Implications
With the rise of social media and digital content, understanding the right of publicity is more important than ever. Celebrities and public figures must be vigilant about unauthorized uses of their identity. Additionally, companies must be cautious and obtain proper consent to avoid legal repercussions.
Conclusion
The right of publicity serves as a vital tool in protecting individuals from the unauthorized commercial exploitation of their identity. As laws continue to evolve, staying informed is key for both individuals and businesses navigating this complex legal landscape. Whether you’re in California, New York, or anywhere else, knowing your rights can help protect your brand and legacy.
Francine D. Ward
Attorney-at-Law, Author, Speaker
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