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Right of Publicity

The right to control the commercial use of one's own name, likeness, voice and other identifying features - a state-law right that varies in who holds it, whether it survives death, and how it yields to news, commentary and expressive works under the First Amendment.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

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What it means

The right of publicity is the right to prevent others from using a person's identity - name, image, likeness, voice, signature, and in some states any distinctive attribute that evokes them - for commercial purposes without consent. It is not limited to celebrities: an ordinary person whose photograph is used in an advertisement, whose name endorses a product they never agreed to, or whose face appears on merchandise has the same claim, though the damages differ. It is separate from copyright, which protects the photograph and belongs to the photographer, and from trademark, which protects a name used as a brand; a single unauthorized use of a celebrity's picture in an advertisement can violate all three, held by three different people.

The right is a creature of state law and the states differ. Some recognize it by statute, some at common law, some both; most treat it as a property right that can be licensed and assigned; and a majority now hold that it survives death for a period fixed by statute, so that the estate of a deceased performer controls the use of their likeness, while a minority end it at death. Which state's law applies - the domicile of the person, or the place of the use - can decide whether a claim exists at all. Several states have recently extended their statutes to digital replicas and voice clones, and federal legislation has been proposed but not enacted; at the federal level the Lanham Act's false-endorsement provision supplies an overlapping claim where the use suggests sponsorship.

The right yields to the First Amendment. Use of a person's name or likeness in news reporting, commentary, biography, history, fiction, art and parody is protected, and the courts have developed tests - whether the use is "transformative", whether the identity is used as the "predominant" element for commercial gain, whether the use is "incidental" - to draw the line between expression and exploitation. Advertising and merchandise are on the unprotected side; a docudrama or a novel is on the protected side; a video game that reproduces a real athlete doing what they are famous for has been held to fall on the unprotected side. Consent is a complete defense, and a signed release is the way it is proved.

Where this comes from

The right of publicity is state law: California Civil Code §§ 3344 and 3344.1 (living and deceased personalities), New York Civil Rights Law §§ 50-51 and its post-mortem provision at § 50-f, Indiana Code § 32-36 and Tennessee's ELVIS Act of 2024 are representative statutes; Restatement (Third) of Unfair Competition §§ 46-49 restates the common-law rule. Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977), is the Supreme Court's only decision on the right and holds it survives First Amendment scrutiny where the use appropriates the whole performance; Comedy III Productions v. Saderup, 25 Cal. 4th 387 (2001), and Hart v. Electronic Arts, 717 F.3d 141 (3d Cir. 2013), set out the transformative-use test, and Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953), named the right. False endorsement under federal law is 15 U.S.C. § 1125(a)(1)(A). Post-mortem terms are each state's own and are not stated here.

When people hire a lawyer for this

A business using anyone's image, name or voice in advertising, on a product or in a promotional social-media post - including a customer's testimonial, an employee's photo, or an AI-generated voice that resembles a known performer - should have a signed release, and a lawyer will draft one that covers the media, territory and term actually needed. A person whose likeness has been used without consent should preserve the use before it is taken down and get advice on which state's law and which claims apply, since the choice between publicity, copyright, trademark and privacy theories determines the remedy and the forum.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

Copyright Registration and InfringementHow copyright arises automatically in an original work and what registration with the Copyright Office adds - the right to sue, statutory damages and fees - together with the elements of an infringement claim, the exclusive rights it protects, and the remedies and defenses on both sides.
DMCA Takedown Notice and Counter-NoticeThe notice-and-takedown procedure under which a copyright owner asks a website, host or platform to remove infringing material, the platform removes it to keep its immunity, and the person who posted it may file a counter-notice to have it restored - with the penalties for a knowingly false notice on either side.
Fair UseThe defense that allows limited use of a copyrighted work without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship and research - the four statutory factors, what "transformative" has come to mean, and why no rule of thumb about word counts or percentages is the law.
Patent (Utility, Design and Provisional Applications)The federal grant that lets an inventor exclude others from making, using or selling an invention for a fixed term - what can be patented, the novelty and non-obviousness tests, the difference between a utility, design and provisional application, and why the first-to-file rule makes the filing date everything.
Trade SecretInformation that derives value from not being generally known and that its owner takes reasonable steps to keep secret - formulas, customer lists, processes, source code - protected indefinitely under state law and a federal civil statute for as long as it stays secret, and lost the moment it does not.
Trademark Registration and Likelihood of ConfusionHow a brand name, logo or slogan becomes a federally registered trademark - the distinctiveness spectrum, the use-based and intent-to-use applications, the examination and opposition process - and the likelihood-of-confusion test that decides both whether a mark can register and whether someone else's use infringes it.
Trademark vs CopyrightTwo different protections that are constantly confused: one protects what identifies your source, the other protects what you created.
Work Made for HireThe rule that makes an employer, not the creator, the author and owner of copyright in work created by an employee within the scope of employment - and the much narrower rule for freelancers, under which a commissioned work belongs to the client only if it falls within listed categories and a signed agreement says so.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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