The Cyberlaw Guide to Protest Art: Rights of Privacy and Publicity

This is the Rights of Privacy and Publicity section of the Cyberlaw Guide to Protest Art. It covers the legal rights of privacy and publicity, which are implicated when protest art features real people. To get an overview of the complete Guide, visit the Roadmap, or link to the other sections here:

  • Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
  • Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
  • Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
  • Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
  • Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

Can I Use the Images of Public Figures or Celebrities in Protest Art?

Generally speaking, you are entitled to use the images of public figures or celebrities in noncommercial uses. Right of publicity laws may prohibit commercial uses of a person’s likeness without their consent.

Right of publicity laws are rooted in the idea that a person should be able to control the commercial use of her name, image, and identity. Though the exact elements of violations vary from state to state, as a general rule, an artist should avoid using the name or likeness of a public figure to depict that person in a misleading way, especially to make a personal profit. For example, in many states (including New York), a written release is necessary whenever the use of a person’s name, likeness, or voice is “commercial” — that is, used in advertising, promotion, or in connection with anything you’re selling.¹

So long as your use is not commercial or confusing, your use of public figure images will likely be permissible (this is very similar to trademark law — see the trademark section of this Guide). This means you should avoid:

  • Implying that a public figure endorses any cause, product, or action
  • Using a public figure’s name, image, or likeness to sell a product or service
Tom Hanks (public domain); Joseph McCarthy (public domain)

If you want to use a public figure’s name, image, or likeness in the expression of an opinion (like a blog post criticizing a government actor), the First Amendment will protect your speech.

Most states also allow for the portrayal of public figures in connection with matters of public interest, or “newsworthy” items. For example, an artist can usually incorporate unflattering drawings or photographs of a public figure who is in the news because such images help communicate information the public wants or needs.

How Do I Obtain Permission to Use the Image of a Public Figure?

The prospect of obtaining permission from a celebrity or other public figure may seem daunting, but you don’t necessarily need their personal cell number or e-mail address. Usually, public figures have agents, offices, or booking contacts with publicly available contact information. Check the public figure’s website or social media accounts to see if they offer any contact information there. The “Press Room” section of a website is a good place to start, if one exists.

If the public figure who you are trying to contact is an elected official, you can consult the USA.gov directory. This directory provides the office phone numbers and personal websites for every U.S. senator, representative, governor, mayor, and many other elected officials.

Finally, sometimes it’s possible to contact the person directly through social media. This could mean a direct message through Twitter or Instagram, or a public comment or mention. Celebrities often engage with fans publicly on social media, and if you ask nicely, you may just get lucky.

Read More!

  • Roadmap: an overview of the complete Guide
  • Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
  • Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
  • Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
  • Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
  • Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

[1] As a sidebar: These laws exist at the state level rather than the federal level, and so they vary a lot: some states offer no protection at all, and others are pretty strict. For a state-by-state breakdown of right of publicity laws, check this interactive map.

The information in this guide is intended for background educational purposes and its authors are not your lawyers. For more information, please click here.

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