With the continued growth of social media and companies seeking to expand their online presence, companies are reminded to keep right of publicity considerations at the forefront of all promotional decisions. As discussed in a prior blog post, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. This right is a property right that prohibits others (including companies) from using an individual’s identity for a commercial gain. This situation most often occurs when a company references a celebrity to promote their product or service without the celebrity’s permission. The right of publicity is protected by state law, not federal law. More than half of states recognize the right of publicity in some capacity.
Among other considerations, companies seeking to use an individual’s persona should also:
- Evaluate the content to determine if use of the content could violate any rights of publicity
- Determine if the content has been trademarked
- Obtain permission from before using the person’s identity
- Confirm all images used have been authorized for use
- Ensure social media promoters comply with all rules and regulations
Companies are also encouraged to comply with all advertising laws when using social media influencers. See a prior blog post on compliance for social media influencers here.