Privacy and publicity rights reflect separate and distinct interests from copyright interests. While copyright protects the copyright holder’s property rights in the work or intellectual creation, privacy and publicity rights protect the interests of the person(s) who may be the subject(s) of the work or intellectual creation. Issues pertaining to privacy and publicity may arise when a researcher contemplates the use of letters, diary entries, photographs or reportage in visual, audio, and print formats found in library collections. Because two or more people are often involved in the work (e.g., photographer and subject, interviewer and interviewee) and because of the ease with which various media in digital format can be reused, photographs, audio files, and motion pictures represent materials in which issues of privacy and publicity emerge with some frequency.
The distinctions among privacy rights, publicity rights, and copyright are best illustrated by example: An advertiser wishes to use a photograph for a print advertisement. The advertiser approaches the photographer, who holds the copyright in the photograph, and negotiates a license to use the photograph. The advertiser also is required to determine the relationship between the photographer and the subject of the photograph. If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to license the use of the photograph for all uses or otherwise waives the subject’s, sitter’s or model’s rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation.
While copyright is a federally protected right under the United States Copyright Act, with statutorily described fair use defenses against charges of copyright infringement, neither privacy nor publicity rights are the subject of federal law. Note also that while fair use is a defense to copyright infringement, fair use is not a defense to claims of violation of privacy or publicity rights. Privacy and publicity rights are the subject of state laws. What may be permitted in one state may not be permitted in another. Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of a person’s identity in order to create a false endorsement.
While an individual’s right to privacy generally ends when the individual dies, publicity rights associated with the commercial value connected with an individual’s name, image or voice may continue. For example, many estates or representatives of famous authors, musicians, actors, photographers, politicians, sports figures, celebrities, and other public figures continue to control and license the uses of those figures’ names, likenesses, etc.
Although the risks for using an image in a periodical’s “editorial” pages may be less than for use in advertising or for other commercial purposes, the risk can still be high if the person depicted is held up to ridicule or presented in a libelous manner. While it is true that famous or public figures who seek recognition have thereby surrendered some privacy, they may have the right to control the commercial use of their image (likeness, voice, signature, etc.). This principle recognizes that a celebrity’s image can be an asset in trade.
© 2010 Will Hunziker
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