In most states, you can be sued for using someone else’s name, likeness, or other personal attributes without permission for an exploitative purpose. Usually, people run into trouble in this area when they use someone’s name or photograph in a commercial setting, such as in advertising or other promotional activities.
But, some states also prohibit use of another person’s identity for the user’s own personal benefit, whether or not the purpose is strictly commercial. There are two distinct legal claims that potentially apply to these kinds of unauthorized uses:
- Invasion of privacy through misappropriation of name or likeness (“misappropriation”);
- Violation of the right of publicity. (The “right of publicity” is the right of a person to control and make money from the commercial use of his or her identity.)
Because of the similarities between misappropriation and right of publicity claims, courts and legal commentators often confuse them. We will not try to exhaustively explain the differences between these two legal claims here. It is mostly important for you to understand the legal principles that are common to both claims; we will point out relevant differences below and on the state pages when appropriate.
Only human beings, and not corporations or other organizations, have rights of publicity and privacy interests that can be invaded by misappropriation of name or likeness. Thus, only individuals can sue for unlawful use of name or likeness, unless a human being has transferred his or her rights to an organization. Note that companies may sue you for trademark infringement and unfair competition if you exploit their brand names for commercial purposes.
The Kelly Legal Group, PLLC
P.O. Box 2125
Austin, Texas 78768-2125