For content developers – including marketers for your more standard goods and service providers – huge opportunities for content creation exist in public space, from community events to newsworthy stories on public figures. But what counts as “public”? And do individuals, private businesses, and even the government have rights in this space? You (and your marketing team) need to have a firm grasp on these concepts to avoid producing improper – indeed, illegal – content.
Your Subjects’ Right of Publicity
Every individual has a right of publicity in his or her own persona or “likeness”; this includes distinguishing characteristics like name, physical features, voice, and signature. If the person is a public (read: famous) figure, the likeness may extend to things such as dress. The right of publicity gives an individual control of the commercial use of his or her likeness.
Public Versus Private Space
The right of privacy is the flip side of the coin on which the right of publicity sits. It is a person’s interest in maintaining his or her privacy; it is at its strongest in private spaces, such as one’s own home, and diminished in semi-public and public spaces. The distinction between public and private may seem obvious, but just because the public is welcomed into a space does not mean it is public in the legal sense. Consider a baseball stadium: on game day, this looks like a public gathering place, but each ballpark (and in fact each team) is privately owned by a business. Make sure you understand the space you’re working in; it will determine the rights you have to capture content.
Content Capture and Content Creation
In private space, the owner of that space sets all the rules. You’ll need consent to enter, consent for anyone and anything captured on the premises, and additional consent to use the captured material in the creation of your media if that media will be broadcasted, published, or otherwise publicly disseminated. In public space, because of a diminished expectation of privacy, you may capture media of persons or other subjects without consent. However, the subject’s right of publicity will still require you to obtain consent before you use the likeness in your content creation.
Commercial, Exploitative, and Fair Use
Most ways you can use your captured content can be sorted into either commercial, exploitative, or fair use. Commercial use is use of content that directly or indirectly generates income – the prototypical example is advertising and promotion of a product. Exploitative use dovetails from commercial use: except instead of (or in addition to) generating income, the use of a subject’s likeness is for the purpose of promoting an idea or viewpoint.
Fair use is the fundamental exception to limitations on captured content. Fair use exceptions for rights of privacy and publicity are analogous to those for copyrights, trademarks, and the rest of the intellectual property sphere. They include: news reporting, commentary and criticism, parody, and education, among others.
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This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.