How can businesses develop agreements to protect privacy and publicity rights?
Businesses should consult with an intellectual property attorney to identify issues or troubleshoot problems before they arise. This is also true for individuals, especially high-profile personalities who have developed a brand around their image.
Publicity rights are almost always governed by a licensing agreement, and I suggest that individuals and businesses consult with counsel before executing the agreement. Counsel can assist in preparing a standard license for a particular enterprise that easily can be modified as circumstances demand.
Businesses (or licensees) also should consider whether a morals clause would be appropriate in the agreement. This may allow the licensee business to terminate a contract and recover fees when a celebrity or athlete is involved in unseemly conduct that may diminish value.
How has the Internet affected privacy and publicity rights?
Advertising often drives revenue for Internet sites, and more and more companies are turning to online advertising and marketing campaigns or at least incorporating online campaigns with more traditional advertising.
Advertising images and content can be shared on the Web in a fraction of the time compared to more traditional avenues. That means a failure to secure publicity rights can have a greater and more immediate impact, exacerbating potential problems and requiring increased awareness. Given the speed and availability of the Internet, a mistake can be repeated and disseminated many times throughout the world in mere seconds.
What legal ramifications are associated with publicity rights?
Infringing on a person’s publicity rights can be an expensive mistake. There are a number of remedies available to a plaintiff whose publicity rights have been compromised. First, a plaintiff can recover the greater of $750 or actual damages sustained as a result of the violation. Damages might be measured by the loss of value or dilution of the individual’s brand.
A plaintiff also may recover profits gained from the unauthorized use. In fact, the plaintiff need only prove gross revenue, while the defendant carries the burden of establishing deductible costs and expenses. Punitive damages and attorney’s fees are also recoverable.
It should be noted that a publicity rights claim may also constitute a false endorsement claim under the Lanham Act, which provides additional remedies for plaintiffs.
Nick J.G. Sanchez is an attorney with Theodora Oringher Miller & Richman PC. Reach him at [email protected] or (714) 549-6200.