The Right to Publicity

What is the right to publicity? The right to publicity is defined as the right an individual has to protect their name, image, likeness or any aspect of their identity against commercial use. Most states have their own law for the right to publicity; California law protects the right of publicity as follows: 

3344.  (a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.”  

 The right to publicity is incredibly important for models.  Models are paid by companies and  brands for granting them permission (i.e., a license) to use the models’ name, image, and likeness (“NIL”).  The models may grant these companies a specific license that describes how their name, image and likeness will be used, and for how long, which allow models to control use of their NIL.  This expiration date is crucial because it protects models from misuse of their image.  They get to control who uses their likeness and how much. Of course, the name, image and likeness of a model or anyone may be used for other purposes that do not violate the right to publicity; this includes news reports, online forums, etc.

Doreen Small indicated to us that a common breach of contract by brands is when they use a model's name, image, and likeness when their permission to do so has expired.

In 2013, model turned lawyer Bassil A. Hamideh sued Dolce & Gabbana, claiming that the company misappropriated his likeness and breached their contract.  He claimed that Dolce & Gabbana’s rights to his images expired in 2003, yet they continued to use them in May 2012 for purposes of gaining profit.  In 2018, male model and actor Jason Olive sued General Nutrition Centers (GNC) when GNC continued to use his image and likeness after their right to do so expired. Olive was awarded a sum of $1 million dollars as a result. These two cases show agencies and companies continuing to profit off a model’s identity without their consent even after their rights and contracts expire. 

There are recommended methods of protecting a model’s right to publicity. The first step is to make sure every personal release and right to publicity license is in writing. Each part of the release and license must be discussed and detailed, and this includes how a model’s name, image and likeness will be used.  A company may not deceive a model into signing the release and license by misstating how they will use the model’s name, image and likeness .  

An example includes a model who signed off on their image being used for an insurance company, but this company used this model while promoting insurance for AIDs victims which the model did not have.  The model was able to sue as a result. Another similar case was presented in which a model’s image was used for educational purposes claiming she was HIV+.  This specific model, Avril Nolan’s image was to be used for an article written about musical interests yet it became a stock image turned for completely different purposes. What went wrong here was when the photographer sold this model’s rights to The Division of Human Rights who then utilized this stock image as ‘representation’ for HIV+ patients. The result was emotional and mental distress for the model.  The reasoning given to take down such use of the image was because this representation of the model was inaccurate and gave her an image of having a “loathsome disease”.  The latter is quite wounding to actual HIV+ patients but the inaccuracy of such a statement made towards her stands.  She is not an HIV+ patient and such statements should not be made without consent of the person. Whether this also affected her relationships with family, intimate partners, etc. is unknown but most importantly her identity was stripped in this specific case. Fortunately, Nolan did not sign a release for her image to be sold or used, therefore her ability to sue and win the case was in her favor. 

Multiple types of personal release agreements exist. Unlimited personal release agreements allow a model’s image to be used in multiple types of media for an indefinite period of time. A limited personal release agreement allows the model’s image to be used for ONLY the specified purposes in the agreement. This is a huge difference between new models starting out and supermodels.  New models are more susceptible to signing unlimited releases and having their image being used for different and even unwanted purposes, while supermodels and more experienced models are careful to limit usage of their images.

References 

Clark, D. (2022, September 28). Agency Contract Basics. My Model Reality. https://www.mymodelreality.com/post/agency-contract-basics

California Civil Code Section 3344 (n.d.). Leginfo.legislature.ca.gov; California Legislature. Retrieved May 14, 2023, from https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=3344 

Faber, J. (n.d.). Right Of Publicity. Notable Right of Publicity Cases; Right of Publicity . Retrieved May 14, 2023, from https://rightofpublicity.com/

Group, R. L., & P.C. (2013, April 26). Fashion Models Sue Former Employer for Likeness Rights, Unjust Enrichment. The New Jersey Employment Law Firm Blog; Resnick Law Group. https://www.thenjemploymentlawfirmblog.com/fashion-models-sue-former-empl/ 

Rothman, J. E. (2018, December 28). Emotional Distress Award Affirmed for Model in California – Roadmap to the Right of Publicity. Rightofpublicityroadmap.com. https://rightofpublicityroadmap.com/news_commentary/emotional-distress-award-affirmed-model-california/ 

Schlackman , S. (2022, August 18). When Do I Need a Model Release Form? (Plus a free sample!) - art journal. Artrepreneur Art Journal ; Artrepreneur. https://artrepreneur.com/journal/model-release-form/ 

Stim, R. (n.d.). Personal Release Agreements. Stanford Copyright and Fair Use Center; Stanford Libraries . Retrieved May 14, 2023, from https://fairuse.stanford.edu/overview/releases/release-agreements/#get_it_in_writing 

Weiss, D. C. (2018, January 18). Model wrongly thought to be HIV-positive through use of stock photo was defamed, appeals court says. ABA Journal; ABA. https://www.abajournal.com/news/article/model_associated_with_hiv_through_use_of_her_stock_photo_was_defamed_appeal