Guide to Privacy and Publicity Rights

Privacy and publicity rights are separate bodies of law from copyright. Where copyright protects the copyright owner’s property rights in a work, privacy and publicity rights protect the interests of the subject of a work (such as the person who is depicted in a photograph). Issues of privacy and publicity may arise when a researcher contemplates the use of letters, diary entries, photographs or content in visual, audio, and print formats often found in library collections.

Privacy and publicity rights are governed by state laws and vary state-by-state.

• Many states have privacy and/or publicity laws, while others do not recognize such rights.
• Some states address comparable rights under other state laws or common law legal theories such as misappropriation and false representation. What may be permitted in one state may not be permitted in another.
• Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of a person’s identity in order to create a false endorsement.
• Keep in mind that while ‘fair use’ is a defense to copyright infringement, it is not a defense to claims of violation of privacy or publicity rights.

While an individual’s right to privacy generally ends when the individual dies, publicity rights associated with the commercial value connected with an individual’s name, image or voice may continue. Many estates or representatives of famous authors, musicians, actors, photographers, politicians, sports figures, celebrities, and other public figures continue to control and license the uses of those figures’ names, likenesses, signature or other aspects of one’s persona that may have commercial value.

Under the First Amendment of the US Constitution which protects freedom of speech, the use of a work to comment on a matter of public interest is less likely to trigger liability than use in advertising or for other commercial purposes. Yet risk may still exist if the person depicted is held up to ridicule or presented in a libelous manner.

Patrons desiring to use materials must make their own decision as to privacy or publicity rights that may be implicated by the nature of the materials and the proposed use. Keep in mind that such clearances are separate from any necessary copyright clearances.