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Right of publicity waiver: looking at the issue of consent, P.2

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Previously, we began looking at the topic of consent in the context of the right of publicity. As we noted, individuals may waive their publicity rights, allowing another party to make use of their image for commercial purposes.

Again, consent is not a universal requirement for using another person’s image in a commercial context. In addition to the rules for consent in the context of commercial mediums, mentioned last time, consent isn’t required by law when using another person’s image in connection with news, public affairs, or sports broadcasting or political campaigns. 

Also, in the employment context, when an employer makes use of a photograph or likeness of an employee, best practice may be to obtain the employee’s consent, but there is a rebuttable presumption under California law that an employer’s failure to obtain such an employee’s consent is not a violation of publicity rights when the image or likeness is only incidental to the purpose of the publication in which the image appears. That is, unless the individual’s image is essential to the publication’s purpose, the presumption is that there is no violation of publicity rights.

The necessity of consent can also be affected by whether an individual’s likeness is readily identifiable from the representation. If an individual’s identity cannot be reasonably determined from a photo, video, or live transmission, consent is not necessarily required under the law, even if obtaining consent is advisable in order to avoid potential liability.  

In cases where consent is provided for commercial use of one’s image or likeness, there is the issue of the scope of consent provided. Parties to these agreements need to be clear about exactly what uses consent is being provided for or disputes can arise later on in connection with the use of the image. For this, the advice and guidance of an experienced attorney is invaluable. 

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