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Right of publicity waiver: looking at the issue of consent, P.1

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.

California, like other states, protects the right of individuals to control the use of their image in certain contexts. Under California's right of publicity statute, violation of an individual's right to control the use of his or her name, voice, photograph, signature, or likeness applies under three conditions.

The first condition for violating publicity rights is that the individual's likeness is used in any manner "on or in products, merchandise, or goods," or in advertising, sales, or solicitation of products, merchandise, goods or services. The second condition is that the use of the individual's image or likeness is knowing or intentional. The third condition is that the individual has not provided consent for the commercial uses of their image. An individual may waive his or her publicity rights by providing prior consent. 

In order to avoid liability for violation of publicity rights, the user must obtain prior consent from the individual whose likeness is to be used, or from a parent or legal guardian of a minor. Failure to obtain prior consent means the user can be held liable for any damages that result from the use of the image or likeness and/or profits derived from the use.

Consent is not an absolute requirement for using an individual's image in a commercial context, though. California law provides that the use of an individual's image in a "commercial medium" such as television, newspaper, magazine or radio does not require consent solely because of the fact that the medium is commercially sponsored or includes paid advertising. The question, in such circumstances, is whether the person's image was directly connected to the commercial sponsorship or paid advertising. The closer the connection, the greater the chances that prior consent is required for the use.

In our next post, we'll continue looking at some other circumstances in which consent is not required for the use of an individual's image, and the importance of working with experienced legal counsel in order to avoid liability for publicity rights violations and to protect one's rights when they are violated. 

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