What Is Right To Publicity And How Does It Impact Your Business?

15 Sep, 2021 By Bobby Klinck
What Is Right To Publicity And How Does It Impact Your Business?

The right to publicity is the area of law that gives people the right to determine how certain attributes of them can be used commercially. That includes your name, image, and likeness, and it applies to everyone.

The right to publicity and its requirements differ from one state to another. Some states offer broader protection while others only provide narrow ones. As an online entrepreneur, you need to adopt the general practices that would satisfy most state laws.

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What Does Right To Publicity Protect?

Name and image are pretty self-explanatory. Meanwhile, likeness refers to some kind of portrayal that a person would recognize as belonging to someone. As mentioned earlier, some states offer broader protection like an image of someone’s signature. Therefore, you can’t use it commercially without complying with the state’s legal requirements.

The right to publicity gives a person the right to choose how they want their name, image, and likeness to be used commercially. That means you can’t just use someone else’s name, image, or something similar to build your business or further your business interest.

How To Avoid Getting In Trouble In This Area?

As an online entrepreneur, what do you need to do so you can use someone else’s name, image, or likeness for commercial purposes?

In most states, you need to obtain an Implied Waiver or Implied Consent. Some states don’t require it but other states do, so it’s better to adopt standards that can be used in any state. The general guidance is to obtain written consent or written release that allows you to use a person’s name, image, or likeness commercially.

Common Trouble Spots For Businesses And How To Avoid Them

There are five common trouble spots that businesses need to watch out for when it comes to the right to publicity.

1. Endorsements

You can’t say that a certain individual endorses your product or service unless they have agreed to do so. You can’t imply an endorsement and you can’t say that there’s an endorsement without permission.

Even if someone tells you through a private conversation or through a personal email that your product is great, you can’t tell the world about it unless you get permission. Implied consent isn’t applicable. You must secure a written statement from that person saying that they’re endorsing your product.

What if some popular people purchased your products? Can you say, “Hey, ABC purchased xyz product?” Nope. You’re not directly saying that they’re endorsing your product but you’re still implying an endorsement.

You need to get permission. For purchases, you can integrate it in your Purchase Agreement or you can reach out to them and ask if you can tell your audience that they’re using your product. So before you say that someone or a popular entrepreneur likes or supports your product, you should get their permission first.

2. Testimonials

Testimonials from regular clients or from famous individuals can also be used as endorsements. You need to get permission before you can use their name, image, or likeness. But if you put a call out for testimonials and someone offered one, you can use it without violating any law because they’ve given consent implicitly.

You can collect testimonials in different ways. You can put out a survey with questions they need to answer and a disclaimer that says you’ll use it commercially to promote your business. People who fill out that form are giving you permission to use their name, image, and likeness.

The disclaimer notice should be placed before and after the survey questions. At the bottom, you may want to include a check box where they need to click yes that they’re giving you permission. It will serve as a written agreement or consent that will allow you to use their name, image, and likeness.

What if someone emails you a testimonial? You can simply respond to it and ask if you can have their permission to use their name, image, and likeness, and to use their testimonial to promote your business. If they say yes, then you’re all set. Just make sure to keep the correspondence in your files in case there’s an issue with consent down the road.

3. Guest Appearances

You need to get consent for guest appearances, whether it’s for a podcast or a video show. You also need to clarify that you own the copyright. It may already be implied that you’ll be using their guest appearance on your show to promote your business, but some states require written consent.

There’s also the issue of whether or not they have given implicit consent that you can use their information or appearance for anything beyond the podcast or the video in question. You can solve this problem by asking them to consent in advance to use their information and appearance for any lawful purpose in your business. Once you can secure that, you can repurpose the podcast or the video for commercial use.

How can you secure written consent? You can include a check box where they can choose “yes,” which means they’re giving you permission when you schedule the podcast interview.

4. Course Participants

When you have an interactive element to your course, you must tell all the participants that anything they do and interact with on your course can be used commercially. You can add a clause to the terms and conditions of your online course that says you have the right to use their appearance and interactions as part of the course and to include it for others to be used.

5. Live Events

As for live events, you can include a clause in your terms and conditions that they agree to give you the right to use their appearance or interactions they make during the live event to promote your business, whether it’s for a future iteration of the event, marketing purposes, or any lawful purpose that’s within the interest of your business.  

Wrapping Up

Any time you’re going to use someone’s name, image, likeness, or anything about them to promote your business or to sell as part of a product and your business, you need to get written permission in advance. If you do that, you’re golden. 

Right to publicity is a pretty intuitive concept, and hopefully you can see that it’s going to come up over and over in your business. But once you get the right procedures in place, it’s pretty simple, and you don’t have to worry about it. 

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Bobby Klinck

Harvard Lawyer and Online Entrepreneur