What Is Right of Publicity and How Is It Used?

The right of publicity gives you control over the commercial use of your identity. While a right, the extent of its legal protection varies across the U.S.

The right of publicity prevents others from using recognizable aspects of your identity for commercial gain without permission. Celebrities confront this issue all the time, but the protections offered by the right of publicity depend on the state—about half of them have specific laws, while others typically recognize violations under common law (also known as case law). 

Here’s what you should know about publicity rights and how to protect your identity from unauthorized use.

Right of publicity: Definition and legal framework

Put simply, the right of publicity grants individuals the right to control the commercial use of their identity, including their name, image, likeness, or other distinctive characteristics. As of now, there isn’t a federal right of publicity per se, so it’s primarily governed at the state level in one of two ways:

• State laws (property right). Some states (such as California, Florida, and New York) have specific publicity laws that treat identity as a property right, allowing individuals to license and profit from the commercial use of their persona. For a successful publicity claim in these states, individuals must typically demonstrate that their identity has commercial value that someone exploited without permission.
• Common law (privacy right). States without specific publicity statutes often recognize claims under the broad umbrella of privacy, typically through the tort of appropriation of name or likeness. Importantly, this rule may apply when a person’s identity is used for noncommercial purposes without such person's prior consent, as long as it benefits the user in some way. 

When publicity is recognized as a property right under state law, the focus is primarily on protecting the economic value of one’s identity, similar to intellectual property law. Conversely, publicity as a privacy right can address both commercial exploitation and other unauthorized uses of someone’s identity—even if no money is involved. 

That said, publicity law and its protections aren't absolute. Courts must consider publicity claims alongside other important interests, particularly when they intersect with journalism or reporting, artistic expression, or matters of public concern protected by the First Amendment. 

Key legal cases and examples

The right of publicity as we know it today began to take shape in 1953 with Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. In this case, two competing baseball card companies advocated for the right to use player photographs, leading the court to recognize publicity as a distinct, transferable property interest separate from privacy rights. 

Since then, the Supreme Court has only dealt with one right of publicity case, and it involved Hugo Zacchini, the “human cannonball” in 1977. The court found that a local television station violated Zacchini's right of publicity when it aired his entire 15-second performance on the news, adversely affecting the public's desire to pay for and attend the show in person.

Courts have also extended protection beyond physical likeness to other defining characteristics, such as for Bette Midler and Tom Waits. Both secured large damage awards (from Ford Motor Company and Frito-Lay) for using vocal impersonators in commercials, establishing that distinct traits like voice are protected under the right of publicity.

However, courts don’t always side with celebrities and public figures. For instance, Tiger Woods lost an appeal over the use of his image in a lithograph by artist Rick Rush. Similarly, in Cardtoons v. Major League Baseball Players Association, the court ruled in favor of the parody baseball card maker, citing free speech protections.  

Challenges and other considerations

As you can see, the outcomes of publicity cases can vary significantly and hinge on subtle distinctions. Here are some of the central challenges of these cases: 

1. First Amendment conflicts. Protected forms of expression like news reporting, commentary, or creative works typically override the right of publicity.  
2. Proving unauthorized use. Certain uses of someone’s identity might be permissible through implied consent (e.g., a celebrity taking photos with fans), if the scope of permission isn’t clearly defined, or if the adaptation qualifies as "transformative use" (as originally defined by the California Supreme Court).
3. Public interest. Content that serves legitimate public interest generally receives protection, though distinguishing between newsworthy material and commercial exploitation can be difficult. 
4. Social media. The viral nature of the internet means unauthorized publications of someone’s identity can spread globally within minutes, which makes containment nearly impossible. 
5. Technological manipulation. Deceptive video editing techniques and technologies like deepfakes only raise new concerns about identity misappropriation and the potential for defamation of character. In recent years, this has increasingly taken the form of AI-generated images and videos of public figures.

Given these complexities, it’s highly recommended to work with an experienced personal injury attorney if you believe your rights were violated. 

Right of publicity vs. intellectual property

The right of publicity might sound like it has something to do with other areas of intellectual property—like copyright and trademark. While distinct, these areas of law both aim to protect against unauthorized uses of valuable assets, whether it’s a brand, an original work, or someone’s identity. 

Trademark law is the right of publicity’s closer cousin: both try to prevent unfair competition and unauthorized associations. For instance, when a company uses a celebrity’s image to promote their product without permission, they’re not just exploiting his or her identity—they’re also potentially violating trademark law by suggesting a connection that doesn’t actually exist. 

Copyright also shares similarities with the right of publicity, particularly in cases involving unauthorized uses of photographs, recordings, or tangible works belonging to the author. However, copyright protections are limited to the creative expression itself (e.g., the photograph), while the right of publicity protects the subject’s identity within that expression. 

Right of publicity isn't just for the famous—or the living

One doesn't have to be famous for a right of publicity issue to arise—or, in some places, even alive. 

In a number of jurisdictions, the right of publicity may survive the death of the person, with the number of years post-mortem ranging from Virginia's 20 years to Indiana's 100.

Thus, if anyone has been using your or a loved one's name, image, or likeness without permission and for commercial gain, it just might be time to start learning more about the right to publicity and how to protect it.

How to protect your right of publicity

While you can’t prevent every unauthorized use of your identity, you can substantially reduce your risk by taking proactive steps. Here are some tips to protect your right of publicity:  

Understand your rights

Since there’s no federal law for publicity rights, you want to research how your jurisdiction governs these protections. Your state may have a specific publicity statute that treats identity as a property right, while others handle claims according to privacy rights and common law. Likewise, you also want to familiarize yourself with the aspects of your identity that are protected. 

For reference, your name, image, and likeness are typically covered, but your state may have specific rules in place for other identifying characteristics like your voice or signature. Still, you should consult an attorney for advice if you have any questions about your rights or how your state handles violations. 

Monitor use of your image and persona

Unauthorized commercial adaptations of your identity can happen anywhere and at any time, but regular monitoring can help you catch violations before they spiral out of control. Here’s how: 

• Set up alerts on Google and social media platforms for your name and known variations of your identity to track mentions.
• Add digital watermarks to your official images and videos to make unauthorized uses easier to find. 
• Use Digital Rights Management (DRM) programs to control how your content is accessed and shared. 

Moreover, you should keep records of where and how you’ve authorized your identity to be used for commercial purposes. 

Register trademarks

If applicable to your brand, you can trademark recognizable aspects of your identity to prevent future violations, such as: 

• Your professional name or pseudonym 
• Distinctive catch phrases or slogans you’re known for
• Logos or symbols associated with your brand
• Your website or social media handles

Federal trademarks generally make it easier to fight unauthorized use and recover damages than doing so through publicity rights alone. Still, the process of registering a trademark can be time-consuming and complex, so you should consider working with a knowledgeable intellectual property or trademark lawyer if you go this route. 

Use contracts and agreements

Like other legal matters, written agreements are your first line of defense in protecting your rights. They specify how, where, and when others can use your identity for commercial purposes, so you might consider drafting the following: 

• Licensing agreements
• Endorsement contracts with publicity rights clauses 
• Appearance agreements for events and productions
• Nondisclosure agreements (NDAs) for preliminary business discussions involving your brand
• Social media and content creation contracts

Each agreement should also note any limitations of the commercial use of your identity. If you’d like some help with drafting an agreement, you can use one of LegalZoom’s templates or work with a contract attorney who can write it for you. 

Take legal action when necessary

Even with preventive measures in place, someone may still violate your rights of publicity. If this happens, you want to take immediate action to stop the violation and potentially recover damages. This starts with consulting an attorney who specializes in publicity rights (if you haven’t already), as it can be much harder to pursue remedies without their assistance. 

From there, you or your attorney will typically start by sending a cease and desist letter with your demands. If the other party doesn’t comply, you’ll usually pursue other dispute resolution methods (such as mediation or direct negotiations) before filing a lawsuit. If that also fails, you can file the appropriate legal claims based on your jurisdiction’s laws and have the court intervene. 

Before you get to this stage, however, we strongly recommend that you seek legal advice to mitigate future violations. LegalZoom can help you connect with an attorney experienced in publicity rights and personal injury, ensuring you have a professional by your side when you need it. 

FAQs

How does the right of publicity differ from the right to privacy?

The right of publicity and the right to privacy both protect against unauthorized use of your identity, but for different purposes. Privacy rights can address any personal harm resulting from unwanted exposure, while publicity rights specifically protect your identity from unauthorized commercial exploitation (i.e., financial gain). 

What are the consequences of violating someone's right to publicity?

Violations may result in monetary damages or injunctive relief—also known as injunctions—to stop the user from using the victim’s identity. Courts may also award actual damages based on lost profits or value, and some jurisdictions might even allow punitive damages for a willful or malicious publicity violation. 

Can the right of publicity be inherited or transferred?

Yes, many states allow the right of publicity to be transferred through contracts (i.e., licensing agreements) or inherited after death. However, the duration and scope of posthumous rights varies significantly. Some states protect these rights for decades after death, while others offer limited or no protection. 

What types of claims are typically involved in right of publicity cases?

Common claims include unauthorized use of someone’s identity, false endorsement, misappropriation of name or likeness, and unfair competition. Cases can sometimes involve multiple claims, including related intellectual property violations like trademark infringement. 

Does everyone have a right of publicity? 

Everyone technically has a right of publicity, but the strength and enforceability of these rights depend on your jurisdiction and whether your identity has measurable commercial value. For instance, certain states protect everyone whose privacy rights were violated, but others require proof that your commercial value was exploited for a successful claim.