The estate of Marilyn Monroe has been embroiled in various legal battles for decades with people who have attempted to profit from her likeness. The most recent ruling was handed down by a federal judge in New York, declaring that the Lanham Act protects Monroe’s intellectual property rights long after her death. This enabled her estate to bring trademark claims against a vintage collectibles manufacturer, despite the manufacturer’s contention that the estate was using the suit to enforce the right of publicity. The right of publicity isn’t applicable to images of Monroe, who died in 1962, but the estate’s claims of false endorsement, trademark infringement and trademark dilution were allowed to move forward.
You can download photos or save screenshots of just about any celebrity, alive or dead. You can snap your own photos or take selfies with celebrities. But that doesn’t give you the right to profit from a celebrity’s likeness, whether you’re trying to sell an image or use it in your marketing.
Let’s be honest. Most celebrities, like it or not, are well paid to promote or endorse products. They’re heavily invested in their public image. Common sense tells us that a celebrity wouldn’t want their likeness used without their consent. The law makes consent a requirement.
Celebrity likeness is protected by the right of publicity, which enables an individual to control the commercial use of his or her identity. Although right of publicity disputes typically involve celebrities, it is a right that applies to every individual, famous or not. In Florida, right of publicity protects a person’s name, portrait, photograph and likeness from unauthorized use throughout the person’s life and for 40 years after death. In other states, right of publicity can also protect an individual’s voice, signature, image, distinctive appearance, gestures or mannerisms.
Right of publicity falls under the umbrella of intellectual property and is sometimes confused with copyright and trademark because all three can overlap. A trademark protects words, phrases, symbols or designs that identify a product, while a copyright protects original artistic or literary work. So before you run an ad with a photo of a celebrity, you need authorization from the photographer and from the person in the photo.
The Lanham Act, or Trademark Act, prohibits activities such as false advertising and false endorsements and associations. This is important because right of publicity may not apply to the use of celebrity likeness in some cases. However, one could claim a violation of the Lanham Act if the use of celebrity likeness could lead people to conclude – incorrectly – that the celebrity is endorsing or in any way associated with a product or service.
It can be tempting to try to capitalize on pop culture, current events and the latest buzz, download a celebrity photo, and use it in your marketing. It can be tempting to snap a photo of a celebrity at a sporting event or concert and post it on your website or Facebook business page. However, the use of celebrity likeness for commercial purposes without authorization is prohibited with few exceptions. If you’re not sure if your planned use of celebrity likeness is against the law, err on the side of caution and consult with an attorney.
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