Right of Publicity: Protecting Your Name, Image, and Likeness from Commercial Use

What Is the Right of Publicity?

The right of publicity is a legal doctrine that gives individuals the exclusive right to control and profit from the commercial use of their name, image, likeness, voice, signature, and other identifying personal characteristics. At its core, the right of publicity recognizes that a person's identity—particularly when it has commercial value because of celebrity or public recognition—is a form of intellectual property that belongs to that individual and cannot be exploited by others for commercial gain without permission. Unlike privacy rights, which are primarily about being left alone, the right of publicity is primarily about economic control over one's own identity.

The right of publicity has roots in the common law right of privacy, specifically in the "appropriation" tort recognized by early twentieth-century courts. The doctrine developed rapidly after the Second Circuit's 1953 decision in Haelan Laboratories v. Topps Chewing Gum, Inc., which recognized for the first time that a professional baseball player had a property right—distinct from a personal privacy right—in the use of his photograph. This property right could be licensed exclusively, and a licensee could sue for infringement of that right. This holding established the foundational commercial nature of the right of publicity and distinguished it from the traditional privacy tort.

Today, the right of publicity is primarily governed by state law rather than federal law, and the protection available varies significantly from state to state. Approximately 35 states have enacted right of publicity statutes, while others rely on the common law. California and New York, as home to the entertainment and advertising industries, have the most developed right of publicity laws and have generated the majority of the significant case law. The lack of a uniform federal law creates complexity for parties operating across state lines, as the law of the state with the most significant relationship to the dispute typically governs the claim.

Who Has a Right of Publicity?

The right of publicity is not limited to celebrities. All individuals have some right of publicity—the right to control whether their name, image, or likeness is used to sell products or services without their consent. However, the practical importance of the right, and the damages available when it is violated, depend largely on the commercial value of the individual's identity. For a famous actor, athlete, or musician, the unauthorized use of their name or image to endorse a product can be worth millions of dollars and cause significant reputational harm. For a private individual, the same unauthorized use may cause little measurable economic damage, though it may still give rise to a claim.

The right of publicity traditionally applied primarily to celebrities and public figures, but modern statutes and court decisions have expanded its application. In the context of data and digital marketing, for example, some courts have found that the unauthorized use of ordinary individuals' names or photographs in targeted advertising can violate their right of publicity, even without celebrity status. Class action lawsuits against social media platforms for using members' names and profile pictures in "sponsored stories" advertisements have settled for significant sums, reflecting the recognition that every individual has some economic value in their identity even without fame.

Whether minors have a right of publicity and who may assert it on their behalf is a recurring issue. Most states recognize that minors have publicity rights, and parents or guardians may assert those rights on their behalf. The growing phenomenon of child influencers and "family vloggers" who monetize their children's images and likenesses on social media has raised important questions about the legal and ethical dimensions of parents commercializing their children's identities. Some states, following the model of California's "Coogan Law" for child entertainers, have begun to enact legislation to protect child social media performers' right to a portion of the earnings generated by their image.

What Uses Require Consent?

The right of publicity is triggered by uses of a person's identity for commercial or advertising purposes. Classic examples include using a celebrity's name to endorse a product, using an athlete's photograph in an advertisement without permission, creating a merchandise line featuring a famous person's likeness, and using a public figure's voice in a commercial without their knowledge. These uses are clearly commercial and clearly require consent—and compensation—to be lawful.

The analysis becomes more complex when dealing with uses that have both commercial and expressive or informational elements. Newspapers and magazines that use a public figure's photograph to illustrate a news story are generally not required to obtain the subject's consent, because the use is informational and protected by the First Amendment's guarantees of press freedom. Biographies, documentaries, and other works that use a person's name or likeness to tell a true story about them are similarly protected. Satire and parody that clearly signals its nature as a commentary on a public figure rather than a genuine commercial endorsement is protected as expressive speech.

The most difficult cases involve commercial uses that have significant expressive content, such as video games that include real athletes' likenesses, celebrity-themed greeting cards, artistic works inspired by public figures, and "transformative" works that use a famous person's image as raw material for creative expression. Courts have developed several tests for navigating these tensions, the most influential being the "transformative use" test adopted by the California Supreme Court in Comedy III Productions v. Gary Saderup (2001). Under this test, a work that adds significant creative elements that transform the celebrity's likeness into something of independent value—rather than merely reproducing the likeness to trade on the celebrity's fame—receives First Amendment protection against a right of publicity claim.

The Descendibility Question: Rights After Death

One of the most commercially significant aspects of the right of publicity is whether it survives the subject's death and can be inherited by their estate. A deceased celebrity's name and image may have enormous commercial value—think of Elvis Presley, Marilyn Monroe, or Michael Jackson—and the question of whether the estate controls that value is a matter of great practical importance. The answer differs dramatically by state.

California, home to Hollywood, has enacted some of the strongest posthumous right of publicity protections in the country. California's statute extends the right of publicity for 70 years after death for celebrities who were either domiciled in California at death or whose identity had commercial value at death. The estate may register the right and sue for infringement. Tennessee, protecting the legacy of Elvis, has enacted a similar statute. New York's statute, enacted in 2021, provides posthumous protection for 40 years after death for individuals who died after the statute's effective date. Indiana and many other states also extend right of publicity protections beyond death.

Other states, however, do not recognize a descendible right of publicity, either by statute or common law. In these states, the right of publicity is a personal right that dies with the individual and cannot be inherited or licensed by the estate. This creates a significant choice-of-law question in cases involving deceased celebrities: which state's law governs the claim? Courts have wrestled with whether to apply the law of the state where the celebrity was domiciled at death, the state where the infringing use occurred, or the state with the most significant relationship to the dispute. Sophisticated estate planning for celebrities and public figures must account for these state-law differences.

Digital Technology and New Right of Publicity Challenges

Digital technology has created a series of new and pressing right of publicity challenges. Deepfakes—synthetic media that use artificial intelligence to replace one person's face or voice with another's—can be used to create highly realistic but entirely false depictions of real people. The creation of deepfakes depicting celebrities in unauthorized commercial contexts, or in defamatory or sexually explicit scenarios, raises difficult questions that right of publicity law (along with defamation and privacy law) is only beginning to address. Several states have enacted laws specifically targeting deepfakes used for commercial or political purposes, and federal legislation has been proposed but not enacted.

AI voice cloning presents similar issues. Companies that train AI systems on recordings of a person's voice can create synthetic voices that closely mimic specific individuals. When those synthetic voices are used for commercial purposes—to narrate advertisements, create fictional audio performances, or impersonate celebrities—without the consent of the individual whose voice was cloned, a right of publicity claim may arise. The legal framework for these claims is still evolving, but the basic principle that individuals have the right to control commercial uses of their voice seems well-established, even if the application to AI-generated imitations raises novel factual and legal questions.

The use of professional athletes' names and statistics in fantasy sports games has generated significant right of publicity litigation. Courts have generally held that the use of factual information—names, statistics, game performance data—in fantasy sports contexts is protected by the First Amendment as informational or transformative use, rather than an unauthorized commercial use of the athletes' identities. The Eighth Circuit's decision in CBC Distribution and Marketing v. Major League Baseball Advanced Media (2007) held that fantasy sports operators could use player names and statistics without licenses, relying on First Amendment protection. This outcome, while controversial among athletes who felt they were being denied compensation for the use of their identities, reflects the tension between publicity rights and the public interest in access to factual information.

Protecting Your Right of Publicity: Practical Steps

Individuals who believe their right of publicity has been violated should take several practical steps. First, document the unauthorized use: screenshot the advertisement, webpage, or other infringing material, and note the date and context of discovery. Second, determine which state's law applies to the claim—typically the state where the individual was domiciled when the use occurred or where the use had the greatest commercial impact. Third, consult with an attorney who specializes in intellectual property or entertainment law, as right of publicity cases can be complex and the applicable law varies significantly.

For celebrities and public figures whose identities have significant commercial value, proactive management of publicity rights is essential. This includes registering the right with state agencies in states that provide for registration (like California), carefully reviewing and negotiating the terms of commercial endorsement agreements, and monitoring the marketplace for unauthorized uses. Talent agents, entertainment lawyers, and intellectual property specialists work together to protect and monetize publicity rights for their clients.

Businesses that want to use a person's name, image, likeness, or other identifying characteristics for commercial purposes should obtain a written release or license before doing so. The license should clearly specify what uses are permitted, the territory and duration of the permission, the compensation to be paid, and any restrictions on modifications or uses. A release obtained for one purpose (for example, a photograph taken for a newspaper article) does not automatically authorize later commercial uses of the same image. Obtaining adequate releases and licenses upfront is far less expensive than facing a right of publicity lawsuit after the fact.