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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.

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 unauthorised 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 recognise 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 defence, 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.

Find a lawyer for this in your state

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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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