The right of publicity is the right for any person, business or celebrity to control the commercial exploitation of his or her own identity. This may include that person's image, name, voice and/or likeness. Specifically, these rights are used to prevent the commercial misappropriation by other people without the consent of the individual seeking privacy and publicity rights. With the democratization of celebrity status as brought about by influencer marketing, publicity rights are expanding in reach.
How to Avoid Liability if you are a Company using a Public Persona?
One of the best ways to reduce a company's risk of exposure to liability over publicity rights is to obtain a publicity and privacy waiver and/or release. This will help prevent claims from arising from several types of commercial and/or public uses of an individual or another company's image, name, voice or likeliness. Types of commercial or public uses of a person or company may include:
Publishing a customer endorsement or testimonial, such as the customer's name and photograph, on the company's website or in a marketing brochure, e-newsletter, or annual report.
Using photographs, video images, or voice recordings of a person in a magazine, billboard, internet advertisement, on product packaging, in a television or radio commercial or social media content.
Making and distributing attendee lists, photographs or video recordings of participants, panelists or speakers at a conference, seminar, publicity event, or private meeting.
In addition, as with any business undertaking, the parameters of the business relationship should be codified in a legal agreement – perhaps even a sponsorship agreement or influencer agreement. Defining rights, responsibilities, obligations, expectations and payment terms ahead of a sponsored event is key to a successful and fruitful business relationship, and certainly assists should the relationship get messy. On the other hand, a brand-influencer collaboration is governed by an influencer marketing agreement. It is important to ensure that the expectations and obligations between the parties are clearly delineated, compensation is addressed, curated content is agreed upon, etc. In some instances, where the influencer is taking on a brand ambassador role, or where the product/services is more complicated, additional commercial terms should be addressed such as product liability, indemnification, morality provisions, etc. Ultimately, through a legal agreement, two parties are coming together for a mutual benefit: profit and exposure.
Governing Jurisdiction
In Canada, the rights of publicity are governed by common law or better known as tort law and/or contract law. If you are not familiar with tort law, it is basically any civil wrong that causes damage to economic interests. For publicity and privacy rights, this may include the wrongful appropriation of a person or company's name, image, voice or likeliness that is being commercially exploited without that person or company's consent. Without consent, legal claims can be pursued in order to obtain damages for any harm caused to a person or company's publicity or privacy rights.
Froese Law is your ally for success. If you or your business want to learn more about how to protect your own publicity rights or to protect yourself from liability against publicity right infringement contact us today! Negotiating and entering into written commercial agreements that apply to the business nuances of the third party relationship is critical.