Right of Publicity: Is this really newsworthy?
Right of publicity in New York State
Rights of publicity vary from state to state. This article discusses New York State law only.
New York Civil Rights Law (CVR), Article 5 covers the Right of Privacy, an umbrella of laws under which the right of publicity falls. Sections 50 and 51 detail the right of publicity and consequences for violation of the law.
Under CVR §50, the unauthorized commercial use of any living person’s name, portrait or picture is a misdemeanor and can carry criminal penalties including jail time and fines.
CVR §51 establishes a civil cause of action for the violation of a person’s right of publicity and states in relevant part:
Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without...written consent...may maintain an...action in the supreme court…against the person, firm or corporation...using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also…recover damages...
This means any person - not just supermodels or social media influencers - may bring a lawsuit against a violating party and seek both money damages and a court order to force the violating party to stop using the person’s name, portrait, picture or voice. The plaintiff must prove three elements: (1) the defendant used plaintiff’s name, portrait, picture or voice; (2) for the purpose of advertising or trade; and (3) without the plaintiff’s written consent.
But, of course, it wouldn’t be law without exceptions. This article discusses the newsworthiness exception to the rule.
Newsworthiness exception to the right of publicity
First, what the heck does “newsworthy” mean? Think about current events, political campaigns, developments in the stock market, the latest Hollywood happenings; these are all examples of newsworthy events. Why? Because to varying degrees all of these things are of interest to the public. Courts have decided the fashion world is included. People are interested in fashion; thus, the goings on in the fashion industry are newsworthy.
Whose ladylike-yet-royal-tradition-breaking dress was Meghan Markle donning at that last dinner benefit? Who designed that (comically) oversized menswear suit Lady Gaga wore to Elle’s Women in Hollywood? What does Kendall Jenner wear to the gym (who cares?)? People are interested in this stuff, and so it is! Newsworthy!
The right of publicity ends at newsworthiness. That means Vogue, Elle, [insert your favorite fashion or entertainment magazine here], Vanity Fair, and People Magazine are free to publish photos of Meghan Markle, Kendall Jenner, Lady Gaga or whoever they fancy if the images are published for the purpose of reporting on something of public interest as opposed to being published for the purpose of commercial trade, i.e., selling a product.
Newsworthy reporting vs. commercial advertising
You might be asking: But don’t the photos in these publications help to sell copies of the magazines? Isn’t that the very reason these publications publish photos of famous people? It’s a legit question. Here’s what the New York Court of Appeals said in Stephano v. News Group Publications, Inc.:
The fact that [defendant News Group, Inc.] may have included [the image of plaintiff-model Tony Stephano] in its column solely or primarily to increase the circulation of its magazine and therefore its profits…does not mean that the defendant has used the plaintiff's picture for trade purposes...
The court explained that the content accompanying the image is what determines whether the image was used for the primary purpose of trade versus reporting news. For example, if Vogue publishes a photo of Beyoncé in Balmain with accompanying written copy stating the price of the dress and where it can be purchased, a court might be more likely to find that the primary purpose of the image was commercial in nature. In contrast, if the text says something like, “Beyoncé brings home the bacon (dear PETA, #sorrynotsorry) in Balmain,” Vogue would be more likely to win with a defense of newsworthiness.
And that guy in the image at the top of this article might have a claim against adidas if the company were to use the image on the online product page for the adidas bag the guy is carrying; but, if adidas were to merely post the photo on its Instagram account with a caption that reads, “New Yorkers wear adidas,” well, that might be considered newsworthy.