Privacy and Publicity Rights

Privacy and publicity rights protect the ability of a person to control the commercial use of their image, and to prevent unauthorized or intrusive uses of their image.  These rights stem from state, not federal, law. “Privacy torts protect photographs and voice recordings of individuals’ private activities and communications in ways that may constrain how those materials can be used in art without consent.” Publicity rights, by contrast, generally apply to advertising and merchandising.  Publicity rights do not end when a person dies and may be passed to their estate.

Artists cannot use a public figure’s image completely free of limitations.  When the image is used for commercial gains, courts must balance the First-Amendment rights of the artist with the public figure’s publicity rights.

To do this, courts ask whether the use of the image is for a commercial purpose.  An individual’s likeness and image cannot be used to promote a product without consent.  For instance, selling a t-shirt with a politician's likeness implies that the politician endorses the product, and therefore violates his or her publicity rights.Yes, all those t-shirts sold on the street with the president’s image are technically illegal.  But it is so difficult to enforce this type of publicity right that most public figures don’t bother, especially when the free publicity works in their favor.  In contrast, selling a t-shirt with a caricature of the politician does not violate that individual’s publicity rights because caricature includes a significant degree of original expression, along with the public figure’s likeness, and this original expression is protected by the First Amendment.

So how does a court determine whether the art is for commercial purpose?  Many courts ask whether the art is transformative, or if the art is just representational.  A still photo of a public figure is representational, but the caricature of the photo is transformed or substantially changed.  If the court finds the art is transformative, it is probably protected.  This area of case law is exceedingly gray and depends on the circumstances and context of the image.  For instance, courts often take into account the medium on which the art appears: images in newspapers and magazines receive significant deference, but mugs, t-shirts and other “product” type objects are less likely to be protected.

Finally, do not confuse publicity rights with copyrights.  Copyrights differ from publicity rights (and privacy rights) because they cover an artist’s intellectual property rights in the art, while publicity rights refer to the subject of the art.  Thus, in the context of using an image of a celebrity, an artist must consider both the publicity rights of the celebrity, but also possibly the copyrights of the original artist who made the image in the first place.  Also, copyright law is based in federal law, not state law.  For more information, see the US Copyright Office page and our discussion of copyright and fair use. 

Publicity Rights in State Law

Publicity rights are a matter of state law, and it is important to note how the law can vary among states, and what implications this may have for your art.  Some states define publicity rights by statute and others rely on "common law" (the law developed by court decisions).  Some states do not define publicity rights at all.  For more information or to get an idea of what rules exist in your state, see rightofpublicity.com.  Two states that deal with significant amounts of right-of-publicity litigation are California and New York.  Both states have statutes that require an individual’s consent before using her name, likeness, or image for commercial purposes, but they differ in how and why the state protects the right.

California’s statute...

is based in property rights – the basic idea is that a person owns the right to use his own image, and can transfer or sell that right to other people, the way you would sell or transfer any other kind of personal property.  The California statute prohibits people from using “another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”  As a property right, California extends publicity rights to the estate of the deceased.  As a result, even after an individual dies, the estate can still protect the individual’s image, likeness and personality.  The statute, however, does not apply when the image or likeness is used for the “news, public affairs, or sports broadcast or account, or any political campaign.”

New York’s statute...

is similar to California’s, but is not quite as extensive.  New York also requires an individual’s consent to use her name, portrait or picture for trade (commercial) purposes.  But since the statute is based in privacy rights, they are not transferrable to an estate, and once a person dies, their rights to privacy cease to exist.  Thus, a deceased individual’s image, likeness, and personality can be used for commercial purposes in New York.

Privacy Torts

Artists, particularly those who use photographs, video, or sound recording in their work, should be aware of how courts in their state respond to intrusions on privacy.  Where a subject has not consented to a recording, courts may consider whether the person had a reasonable expectation of privacy.  Photographs taken in public places or featuring people visible from public vantage points are generally not subject to privacy torts, [cite: e.g., Gill v. Hearst Publishing Co., 40 Cal. 2d 224, 226 (1953)] but some jurisdictions allow limited rights against certain uses of “street photography” that can be used to identify the person and misrepresent his or her activities for non-newsworthy and non-public purposes. [e.g., Christianson v. Henry Holt & Company, 2007 WL 2680822 (C.D. Ill. June 29, 2007) (although defendants’ book dealt with a newsworthy topic, the author and publisher could not use a woman's photograph on the cover because she was unconnected to the subject and was never mentioned in the book); Thompson v. Close-Up, Inc., 277 App Div. 848 (1st Dept. 1950) (publication of photograph did not fall within exceptions to Civil Rights Law where plaintiffs had no connection to dope peddling, which was the subject of defendant's article)]. Finally, artists may be subject to tort or criminal liability for non-consensual intrusions, such as recordings made using deception, hidden surveillance equipment such as recorders or drones, or trespass into a home or private place.  [See State v. Morris, 644 N.W.2d 114, 118 (Minn. Ct. App. 2002) (applying voyeurism statute to “upskirt” intrusion); but see Foster v. Svenson, 2015 N.Y. Slip Op. 03068 (1st Dept. April 9, 2015) (refusing to apply Civil Rights Law to artist’s photography into neighboring family’s apartment windows)]
    “Typically, a person who consents to have his or her image or likeness recorded by another is understood to have consented to later display and publication of that material for documentary or artistic purposes.  However, artists should be aware of new laws against “non-consensually shared explicit images” that may test this longstanding rule for nude or sexually explicit images published without the subject’s permission.  Moreover, artists may be required to secure the subject’s permission to use any consensually taken recordings for advertising or other commercial purposes, sometimes in writing, depending on the state.”  [See, e.g., Cohen v. Hallmark Cards, 45 NY 2d 493 (NY 1978) (discussing New York statute requiring prior written consent)].  

Related Cases 

Hart v. Electronic Arts--A function that lets users tweak the appearance of a real-life football player’s videogame avatar is not considered transformative enough to be a form of protected expression.

Hoepker v. Kruger--Hoepker sued Kruger for copyright infringement and invasion of privacy for using some of Hoepker's photographs in her works. 

Nelson v. Streeter--Nelson painted an "offensive" image of a recently deceased Chicago mayor, which was seized by city aldermen. 

Nussenzweig v. DiCorcia--DiCorcia photographed strangers in Times Square, without their consent. One of the subjects sued, alleging a breach of privacy 

Sefick v. Gardner--Sefick created a satirical sculpture of a federal court judge, and was denied permission to display it in the lobby of a federal courthouse. He challenged that decision. 

Simeonov v. Tiegs--A dispute over Simeonov's continued use of model Cheryl Tiegs' impression to create plaster castings. 

Wildmon v. Berwick Universal Pictures--Wildmon objected to the use of his image in a documentary, and hoped to stop distribution of the documentary on the terms of the contract.