Models' Right to Publicity

One of the most common question I get from models is: “I just found out someone is using photos of me without my permission…How can I make them stop?” The answer depends on how the photos are being used.

You have the right to control what products or services your image or persona is used to promote. This right is commonly referred to as your “right to publicity.” If your name, image, likeness and other unequivocal aspects of your personality is used to promote a product or service without your consent, you may have a cause of action under Florida law for invasion of privacy. The "right of publicity" is intended to assure an individual the right to own, protect, and commercially exploit his or her name, likeness, or persona. Florida generally categorizes the right as a personal right as part of your Right to Privacy and refers to the infringement of the right as the “Misappropriation of Identity”.

The Florida Statutes on the Right to Publicity haven’t changed much since they were first enacted over 60 years ago. Florida law prohibits the publication of an individual's name, photograph, or likeness for any commercial purpose without the individual's express written or oral consent. A person whose likeness is used without consent may bring an action to enjoin the unauthorized use and to recover damages for loss or injury sustained by the publication, including a reasonable royalty, and punitive damages. In some circumstance, if it can be shown that the misappropriation was egregious and done with malice, the statute allows for triple damages and attorney fees.

The law contains three specified exceptions. The first is the Public Interest exception. This exempts news paper, magazine, news broadcasts, some literary uses, and other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes." So, no photo release is needed to include a picture of you where that picture becomes part of a news article. This concept is similar to the Copyright exception for “fair use”. This is also the exception that allows for the entire concept of paparazzi. The courts have ruled that Public Figures are entitled to less protection of the right to privacy due to the fact that their notoriety may create a genuine public interest in their activities.

Second, the law does not apply "in connection with the resale or other distribution of literary, musical or artistic productions or other articles of merchandise or property" when the person has consented to the initial use. This exception make sense when you consider situations where it may be applied. If a model agrees to be on a cd cover, I buy the cd and later pawn it, the pawn store doesn’t need a new release from to model to advertise the cd for sale in the original cd cover…common sense.

Finally, the statute does not apply to photographs of a person "solely as a member of the public" when the person is not named or otherwise identified with the use of such photograph. Photographing the general public without their consent is not seen as an invasion of privacy, as the Court has determined that you have not have an expectation of privacy when out in public. Therefore, pictures of you dancing at a night club, posted on the club’s website does not violate your right to publicity. However, if the picture includes a caption with your name, for instance, “Wendy Jones partying with our staff”, the use of your image is not covered by the exception because it identifies you and insinuates that you endorse the night club and/or its staff. Both the identification and the insinuated endorsement violates the exception.

Florida's statutory "right of publicity" is intended to assure an individual the right to own, protect, and commercially exploit his or her name and likeness, but in order to recover damages for the violation of this right, your image or persona must have been used to promote the products or services of another without your consent. This is referred to as the Direct Promotion Requirement.

However, quite often, the issue at hand is that a model has sat for photos with a photographer, perhaps posted those photos on the web to promote the photographer or the model herself, and someone “stole” the pictures and are now displaying them on their own website. As long as the photos are not being displayed in a manner that suggests that the model endorses the products or services of the offending website, there is probably no theft of publicity. The photographer, however, may have a Copyright infringement claim if he or she did not authorize the offending sight to copy his pictures. As a model, you have some control over how the photos are used, but the photographer is usually the holder of the Copyright for the photos he created, and therefore, he has control over IF the photos are use. If the photos are used without the photographer’s consent, he may have a Copyright claim regardless of whether the photos are used in a way that insinuates your endorsement of a product or service.

So, the answer to the question at hand is: If images of you are being used, without your permission, to endorse the product or services of another, your Right to Publicity has be infringed upon, and you may be able to recover damages and get injunctive relief; but if the use of your images does not imply your endorsement of specific goods or services, there will normally be no recourse for a model.