Creating a personal brand can be a way to establish an authentic image and stand out from the crowd. For most people, personal branding is a communications strategy rather than a career path. A carefully cultivated personal brand lets people know at a glance who we are, what we stand for, and the value we provide. Let’s talk about how to protect your likeness.
But for anyone with a degree of celebrity, their livelihood can depend on or at least be tied to their personal brand. Celebrity is a strong currency in our media-driven culture. How much somebody benefits from their status as a public figure depends largely on how well they control their own brand. If public figures do not protect their name, image, and likeness, somebody else could profit from them.
Understanding the Right of Publicity
When a company has created a valuable idea, design, symbol, product, or work of authorship, it has intellectual property rights that can be protected under patent, trademark, or copyright law. Once a patent, trademark, or copyright is registered with the appropriate government agency, its owner has additional tools to enforce their rights against unauthorized use by others.
People are similarly entitled to intellectual property rights that protect against another’s misappropriation of their name, image, and likeness for profit. This is known as the right of publicity. The right of publicity is not protected by federal law but rather at the state level, and state laws vary. Where an individual lives therefore has a strong bearing on their right of publicity.
In California, for example, almost anyone’s likeness, name, photograph, signature, and voice is protected for seventy years after their death. New York, on the other hand, only grants right of publicity protection to those who profit from their name and likeness.
More than half of the states recognize some form of the right of publicity, either at common law or in state statutes. However, even where granted, the right of publicity is not absolute. The First Amendment protects the use by others of a person’s name, image, and likeness in news sources, educational materials, and some forms of entertainment, provided there is not commercial exploitation by a third party.
Contracting Out Name, Image, and Likeness
Athletes, celebrities, and influencers have the right to control how their name, image, and likeness are commercially used. If another individual or company attempts to use their personal brand in an unauthorized or improper way for its own profit, such use could provide cause for legal action.
Because a person’s name and image are theirs to control, however, they can allow other parties to use them commercially. Permission is typically granted through a licensing agreement.
Licensing agreements can be fraught with peril for the uninformed. The licensee party (i.e., the party that is buying the rights to a person’s name, image, and likeness) may include contractual clauses that the licensing party (the athlete or celebrity) may eventually regret, such as the following:
- An exclusivity clause that prevents the licensing party from working with competitors (e.g., if the contract is for promoting a line of men’s grooming products, the licensing party agrees not to engage in advertising, promotional, or marketing activities for companies that compete with the licensee).
- An in perpetuity clause that allows the licensee to use the licensing party’s name, image, and likeness forever.
When it comes to contracts, the devil is in the details. It is reasonable for a business to seek to prevent their paid endorser from working for the competition. But overly broad categories of exclusion—for example, the entire beverage industry—should generally be avoided in favor of more detailed subcategories, such as energy drinks or soft drinks.
In some cases, an in perpetuity clause could be illegal. Now that college athletes have the right to profit from their name, image, and likeness, some states have passed laws specifying that licensing agreements cannot extend beyond an athlete’s collegiate playing career. These deals also cannot reward athletes for their on-field performance.
Contracts that contain illegal provisions are unenforceable. However, barring an illegal contract, once an agreement is in effect, it can be difficult—or impossible—to renege on it without financial repercussions.
Consider the cautionary tale of Hayley Paige, a bridal gown designer who signed a contract with JLM Couture to create a namesake line of wedding dresses. When Paige tried to negotiate a new contract, she found herself trapped by the terms of the original contract, which did not even allow her to use her name in business or post on her social media accounts without JLM Couture’s permission. She says she regrets signing that first contract and, as a young and inexperienced designer, feels that she was taken advantage of by a big corporation.
An attorney should always review licensing agreements before you sign them. Cancellation provisions can be added to an agreement that stipulate the circumstances under which a licensing party is within their rights to cancel or modify the agreement.
How Much Are My Name, Image, and Likeness Worth?
All of this begs the question of how much a person’s name, image, and likeness are worth in monetary terms. This consideration will come into play if someone sues over a breach of their right of publicity. It can also be a factor in estate planning if the right of publicity survives beyond the death of the person with celebrity status under state law.
Valuing a personal brand is much like valuing a business. It mostly comes down to calculating future revenue potential. Projecting income, though, is not always straightforward for a business or an individual. The value of a personal brand may change, and the change is often unpredictable.
Celebrity cachet is based on consumer sentiment, and the public is notoriously fickle. A celebrity who has a successful run may fall off the cultural radar a year or two later. Often, an income approach that uses net present value is combined with a market approach that looks at other public figures of comparable status.
Know Your Rights. Protect Your Brand.
The internet has broadened the celebrity sphere. Today’s online influencers can garner a fan base that used to be reserved for famous movie stars, musicians, and athletes. Specialty niches abound, providing a YouTube streamer or an Instagram model the opportunity to build their personal brand into a personal empire, complete with endorsement deals.
Fame and money have a way of attracting bad actors. To protect your right to you—and preserve the value of your personal brand—you must understand what is and is not permitted. Working with an experienced attorney can help ensure that others do not take advantage of your hard work and talent.
Schedule a consultation with a lawyer like Angela Schmit to learn more about how we can take steps to protect your business with confidence. Contact her today.
