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Determining if a release is needed to use a person’s image, likeness, name or other aspect of identity that is recognizable can be a daunting task. When someone takes a photo or wants to use something identifying to another, the right of publicity governs that person’s right to control commercial use of their name, likeness, image or other identifying aspect.
Generally, the right of publicity is a state law based right, as opposed to federal, and recognition varies from state to state. Usually the only time the federal government comes into account for matters of privacy are ones concerning the First Amendment or governmental action.
Even if a state doesn’t have a statute that specifically regulates this right, it probably has a common law right that governs it. This article will focus on Florida and the laws that govern the right to publicity. However, every state is slightly different and views on what is protected and what constitutes a violation can vary greatly between states.
In most cases, a release is not needed to use a person’s name, image, or likeness for informational purposes or those images that are taken in public places. This is because members of the public have a very limited scope of privacy rights while they are in public places. Public place means anyone from the public, or a reasonable group of the public, has access and it is not secluded or used exclusively by an individual or group.
An informational or editorial purpose is anything that informs, educates, or expresses opinions protected by the First Amendment, such as freedom of speech and of the press. An example of informational use includes using a person’s name or photograph in a magazine or newspaper article, film, nonfiction book, educational program, or informational website.
Therefore, if the intended use is for informational purposes, a release may not be needed for an individual in a public place, even though that person is identifiable. If it is going to be for commercial purposes, such as advertising, to promote one’s business, or for profit, then a release may be needed. Even in cases where a release is not needed, you should be careful that the use of the image or likeness is not defamation or invading the privacy of the individual.
While Florida has a statute that protects the unauthorized commercial use of an individual's name or likeness, it also has a common law based right as well. However, since Florida has recognized a statutory right to publicity, decisions usually cite the statutory claim over the common law right and generally don’t find a violation of the common law right unless it is violated under the statutory right as well. With that being said, this does not prevent a person from claiming a violation of both the statute and common law.
In Florida, simply using a person's likeness in connection with a commercial product or service does not violate the statute. Instead, it prevents the unauthorized use of a likeness to directly promote the product or service of the publisher. The common law right protects an individual's name or likeness is used without his or her consent for the benefit of value.
Both the common law and statutory rights of publicity recognize consent as a defense when the individual consents to the use of his or her name or likeness. Therefore, a release to use an identifiable person’s image or likeness is a good idea if you are using it for commercial purposes, those taken in private places, or when there is a question about either.
Florida statutory right of publicity creates a property right in a person’s name and likeness that is held by that individual. It protects a person’s name, portrait, photograph and likeness. The term ‘photograph’ means to include both still and moving pictures as well as reproductions of the individual. Furthermore, Florida statute states that the person must be identifiable in the photograph and can’t merely be a member of the public who is unnamed or not connected to the use of the photograph. Fla. Stat. Ann. § 540.08(4)(c).
Specifically, Florida’s statute provides that,
"No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent". Fla. Stat. Ann. § 540.08.1.
The statute specifically protects against the unauthorized use of an individual’s name or likeness for commercial purposes. In Tyne v. Time Warner Entertainment Co., the Florida Supreme Court held that in order for a violation to occur, the use can’t be for merely expressive purposes. It must be done for the defendant’s benefit and to promote a product or service.
Mere inclusion in a product that is sold for profit is generally not enough to constitute an unauthorized use. Instead, there must be a demonstration that the association of the likeness with the product is valuable and exploitative. Valentine v C.B.S., Inc. There must be a direct promotion associated with the unauthorized use and Florida courts have generally refused to find liability under the statute unless the use directly promotes the defendant’s product or service. A commercial exploitation that results in the defendant’s unjust enrichment must occur. Just having one’s likeness used is not enough. There must be evidence that the likeness is associated with, or an endorsement of, the defendant’s product.
With that in mind, when a person’s likeness is used for advertising purposes of a product, Florida courts have found that there is a violation if there is no consent to use that likeness. Furthermore, in Weinstein Design Group v Fielder the court found that merely printing material to be used in advertising with unauthorized likeness is a violation of the statute.
Once a person is deceased, Florida provides the right of publicity for 40 years after the death of the individual and the core of the rights stays the same before and after death. It is also considered a freely transferable property right able to be inherited by decedents and licensed.
Common law right of publicity is the right to not have a person's name published without his or her consent. A violation occurs when the individual's name and likeness is used without consent for the benefit its value would confer on the defendant.
While both the statutory and common law right to privacy exists in Florida, generally Florida courts have been reluctant to allow plaintiffs any relief under the common law unless they would have gotten relief under the statute.
For either the common law or the statutory law of publicity in Florida, there are exceptions to an alleged violation. These exceptions can be used in the defendant’s defense to protect the defendant, even if there is a violation.
1. Member of the public – If a person is merely a member of the public, then there is no reasonable expectation of privacy and in some cases, even if they are identifiable. Unless the person is acting in seclusion, and the general population would have an expectation to privacy, then they do not have an expectation to privacy and may have their image used for noncommercial purposes (except advertising).
2. Consent – If the person gives consent to use their likeness for the purpose it is used for, then there is no violation to either the statute or the common law. By giving consent to use their image, they are waiving this right to privacy.
3. First Amendment – Right to publicity claims are limited to the First Amendment and both the statutory and common laws include some kind of a safe harbor for press covering legitimate public interest.
While Florida recognizes a right to publicity under both statutory and common law, most people taking photos in a public places won’t have to worry about these violations. When someone enters a public place, their right to privacy is limited in scope and therefore their rights to publicity are limited as well. This means while you are in the public place, you can pretty much take whatever photograph you like of a person who is also in a public sphere.
When someone goes to publish that photograph or image, then the law of publicity comes into effect. While everyone has a right to protect their likeness, in the legal sense, it is not just a mere representation of ourselves. Instead, for legal purposes, our likeness is a representation of ourselves used to promote products or services.
This means technically, a release form would likely not be needed if the likeness does not directly promote or advertise a person’s product or services, does not defame the subject, and does not violate the individual’s privacy. Noncommercial, informational use is acceptable without consent.
However, if the photo is taken in a public area and the use is going to promote a product or service, then a release form should be received from those in the photo who are identifiable. If there is every any doubt about what the use will be for or whether it would be considered commercial use, a signed release can be used to protect you from violations that may occur.
All statements in this post are intended to be informational and should NOT be considered legal advice. If you have any questions about the legality of a specific situation, or any legal questions in general, please seek the advice from a qualified legal professional.
Ashley Brenneman is a graduate of Western Michigan Law School. She enjoys researching and writing about many topics of interest, including law and legal issues.
The Essentials of a Model Release Form Template. (Darya Danesh,
Cofounder, StudioBinder)
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