The right of publicity is the right of a person to control and make money from the commercial use of his or her identity. A plaintiff that sues you for interfering with that right generally must show that you used his or her name or likeness for a commercial purpose.
This ordinarily means using the plaintiff’s name or likeness in advertising or promoting your goods or services, or placing the plaintiff’s name or likeness on or in products or services you sell to the public. Therefore, it is a bad idea to create an advertisement suggesting that a celebrity — or anyone for that matter — endorses your website or blog. It is equally unwise to use someone else’s name as the title of your website or blog, especially if you host advertisements. You can be liable even without creating a false sense that the person in question endorses your product or service; the key is that you are exploiting the plaintiff’s identity to drive traffic or obtain some other commercial benefit.
It may also be an exploitative commercial use to sell subscriptions to your site in return for access to content relating to a specific (usually famous) individual. For instance, one court held that a website operator violated Bret Michaels and Pamela Anderson’s rights of publicity by providing website users access to a Michaels-Anderson sex video in return for a subscription fee. See Michaels v. Internet Entm’t Group, 5 F. Supp.2d 823 (C.D. Cal. 1998).
Fortunately, the law places important limitations on misappropriation and right of publicity claims, which help to protect your right of free expression and to safeguard the free flow of information in society.
The Kelly Legal Group, PLLC
P.O. Box 2125
Austin, Texas 78768-2125