Privacy Publicity and Wrongful Usage of Your Likeness and Image

There is a lot being made of the name, image and likeness rights of college athletes lately. But these rights don’t just attach to athletes and public figures; we all have these rights, although for most of us, they don’t have the value that they do for public figures.

Your NIL Rights

You own who you are. That sounds silly, but legally, it means that you own your look, your likeness, your image (sometimes called Name Image and Likeness, or NIL). They may not have a value to you or to anyone, but when they are used without your permission, and to benefit someone else, you may have a claim for violating your publicity rights.

Imagine, for example, you are shopping happily in a grocery store. The grocery store takes your picture without you knowing, and to show what a great store they are, they use the picture of you smiling and happy inside of the store, without you knowing and without your permission.

That store just derived a financial benefit from your image and likeness, without you knowing it, and without paying you for usage of your likeness.

That’s why, when businesses have events to photograph customers or participants, there usually will be a sign or a photo release, where people waive their rights to sue, and give permission to the event organizers to use their photographs however the organizers may want.

Public and Fair Usage

To some extent, someone can use your image or likeness for public usage, if there is no direct profit involved; for example, for news reports or artistic reasons, or for educational reasons.

To Sue for Wrongful Use

To sue for the wrongful use and profiting off of your likeness, the first thing is that you need to be identifiable in the photos. If you are just a blurry blob in the background of someone’s marketing photograph, you likely don’t have the right to sue for violating your privacy or for your publicity rights.

You must demonstrate that using your picture or the likeness of you, somehow benefitted the party that used the photo without your permission; that is, that there was some connection between your photo or image, and the promotion or product your image was used to promote, and that there was a monetary and commercial value that the other side realized, in using your image without your permission.

Even death won’t take away your privacy rights; your estate can maintain a claim against someone who uses your image or likeness, even after you are gone.

Damages

You have the right to recover whatever profits the other side derived from the unauthorized use of your image, as well as royalty value; that is, what you would have or could have charged as a royalty, had your image been fairly negotiated and used with your permission.

Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954-440-3993 for help with your business law case.

Sources:

flsenate.gov/Laws/Statutes/2011/540.08

scholar.google.com/scholar_case?case=15300621820639118065&q=408+So.2d+619&hl=en&as_sdt=2,22