Celebrities are constantly in the public eye, often shying away from cameras and other times lovingly embracing them. Many public figures often complain about a lack of privacy, however, isn’t this a part of what they signed up for?
The legal question we will analyze is:
Can public figures ever properly and legally protect their identities, images, likeness, brands, and names?
In the past few months, we have seen celebrities and social media stars powerfully strike back. Ariana Grande is suing Forever 21 for using her name, image, and likeness to promote their brand. Prince’s estate is exposing the Trump administration for failing to keep their promise to refrain from using his music at rallies. Tik Tok stars are lashing out at the social video platform for using their videos in the company’s advertisements without compensation or their authorization.
In general, the unauthorized use of a person’s name, portrait, picture, and/or voice, within the State of New York, for advertising or trade purposes, without the person’s authorization is a violation of the right of publicity, protected under NY Civil Rights Law §50 and §51. However, legal recourse regarding the right of publicity can tend to get murky.
Let’s take a look at how the court has ruled in the past...
In Rosemont Enterprises, Inc. v. Random House, Inc. and John Keats, the Plaintiff asserted claims of violation of the right of privacy and the right of publicity of Howard Hughes by a publisher, who published a biography without Hughes’s authorization.
The Court determined that these actions are protected by the Constitution, and they do not fall under the right of publicity or right of privacy. Indicatively, the Court held that “The Biography of Howard Hughes, published by defendants herein, irrespective of its literary merit or style, falls within those ‘reports of newsworthy people or events' which are constitutionally protected and which are outside the proscription of the New York ‘Right of Privacy’ statute. The allegation that the book was published for ‘purposes of trade’ and profit does not alter its protected status.
The publication of a newspaper, magazine, or book which imparts truthful news or other factual information to the public does not fall within ‘the purposes of trade’ contemplated by the New York statute, even though such publication is published and sold for a profit.
Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a person's name, features, or biography in a literary work, motion picture, news or entertainment story. Only the use of an individual's identity in advertising infringes on the persona.
Because Hughes was a public figure, it was found that there was a public interest in obtaining information about him. The newsworthiness exception or defense has been interpreted to cover not only events that are newsworthy, but also information of people for whom there is a public interest, such as politicians and celebrities.
In these cases, even though the use of the person’s name definitely confers an economic advantage to the user (e.g. newspaper or book publisher), the use is not considered to be “use for advertising or trade purposes”, and is not caught by New York’s right of publicity.