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The Right of Publicity: Can You Post That Picture?

It happens all the time. You, or your business, take pictures of the glamorous moments featuring your interactions with customers, stakeholders, or the overall community in general. You think to yourself, "Hey, this would make a great picture to post on our social media!". But wait a minute folks, a business does not have free rein to use images of their customers simply because they feature the offerings of the business.

A common form of marketing in the age of social media is the use of pictures and testimonials about customer experiences. This can be a great way to display the services you provide or the goods you sell by showing potential customers a past customer enjoying what you have to offer. However, your clients and customers have privacy rights and the ability to control the utilization of their identity online. Posting pictures with client names without approval can prompt constrained takedowns of posts and advertisements, as well as even adding expenses as harms paid to those previous clients. This can be an extraordinary method to promote, however you should ensure you acquire the correct consent so you can use your cheerful customers to pull in future business.

So what exactly is the Right of Publicity?

The Right of Publicity sometimes referred to as personality rights, is the right of an individual to control the commercial use of one's identity, such as name, image, likeness, or other unequivocal identifiers. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

Personality rights are generally considered to consist of two types of rights:

1) The right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar (but not identical) to the use of a trademark

2) The right to privacy or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how his or her right of publicity is commercialized by a third party, if at all. Often, though certainly not always, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

The most evident answer for staying away from the risk of utilizing client resemblances without authorization is to get consent for these planned uses. Call our offices if you have any questions.

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