When Is Using a Name Without Consent Permissible?
What Constitutes Using Someone’s Name Without Permission?
There are two laws in Texas that apply to the use of a person’s name: The Texas Right to Privacy (or Right of Publicity) Act, found in Chapter 26 of the Texas Civil Practice & Remedies Code, and the Texas Deceptive Trade Practices Act ("DTPA") found in Chapter 17 of the Texas Business & Commerce Code. Although both expand to include "name," there is a significant distinction between how these terms are applied under each act, and the relief recoverable under each act. To bring a claim under the Texas Right to Privacy Act, you must prove the existence of permission. Of course, acts that fall under the DTPA are distinct in nature and may allow a party to recover attorneys’ fees .
Other common examples of actions that fall within the statutory definition of using someone’s name without permission may include a newspaper article discussing the actions of a public figure; the sale of a person’s signatures on memorabilia; or a hotel using the likeness of a celebrity in its advertisements, without the celebrity’s consent. Additionally, use of another’s name need not be commercial in nature. Each individual’s right to privacy is protected, regardless of whether the benefit from using the name is commercial. Moreover, use of a name does not require the user to make its use clear (for example, in the form of a disclaimer).
Right of Publicity and Privacy Protection
Ensuring that these courts protect the right of privacy guaranteed under Article I, section 52 of the Louisiana Constitution and hold that the name and likeness of a private person is not available for use by anyone without his permission." Murray v Madison, 489 So. 2d 1263, 1264 (La. App. 4th Cir. 1986).
Likewise, the Federal Courts and various State Courts have acknowledged this right of privacy. "Judges have long recognized that the right of privacy subsumes an interest in the protection of the name or likeness of an individual against appropriation for a commercial or other unauthorized purpose." Keller v. Electronic Arts, Inc. 2013 U.S. App. LEXIS 22241, fn 7 (9th Cir. Nov. 4, 2013). However "[n]o matter how one interprets the law to define these specific interests, it is clear that as a general proposition privacy is a long-recognized right in Louisiana which, absent defendant’s express permission, would normally be conferred upon a private citizen as a matter of law." See McCarthy, Rights of Publicity, supra, § 5:1.
The right of privacy is also recognized in many other states and jurisdictions as well, see, e.g., id., § 5.3 (Disclosures Required by Federal Statutes), § 8:25 (Damage Recovery), §§ 9 16-19 (California); § 4:5 (Fair Use and Related Doctrines) (Georgia); Daggett v. Hudson & Manhattan Railroad Co., 133 A.D. 168, 117 N.Y.S. 648 (App. Div. 1909); Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 415 F.3d 136(3rd Cir. 2005)(New Jersey); McFarland v. Millinger, 27 F.3d 390 (8th Cir. 1994)(Minnesota); Colorado Stat. § 12-37-105; 815 ILCS 513 (Illinois) (Right to Publicity Act; Act of June 1, 1999, P.L. 86-161); and Davis v. H.C. Prange Co., 283 Wis. 2d 242, 699 N.W.2d 50 (Wis. 2005).
Using a Name Without Permission: What’s at Stake?
Using a person’s name without their permission may seem like a harmless action. But choosing to do so can have profound legal, financial, and reputational implications, which you should consider before deciding to act.
The potential legal risks are broad-ranging and can vary depending upon the circumstances and jurisdiction. Among them:
False Endorsement—Using another person’s name or identity without permission may lead customers or the public to believe that the person endorses your product, service, or corporate altruism. This is known as false endorsement under the Uniform Trade Act (UTSA). The Utah UTSA law states a person or entity engages in false endorsement when it "causes a likelihood of confusion or of misunderstanding as to sponsorship, approval or certification of goods, services, or commercial activities when (a) a mark or other identifier is identical or confusingly similar to the name, voice, signature, photograph, or likeness of the person; or (b) the mark is likely to cause the reasonable person to presume that the person is associated with that person’s business, good, or service." For example, using a celebrity to endorse your product offers a business financial value (even if the celebrity’s actual endorsement was never made). That value generated by a celebrity’s name, photo, or voice is considered valuable "goodwill" which the person has the right to license to others. When this masquerades as an endorsement the victim is owed damages.
State Right of Publicity Laws—Thirty states have enacted specific laws protecting the right of publicity, ranging in nature from the identification of the specific financial value of the right to the broad-brush statement that the right exists but leaving to the state’s courts the determination of what damages arise from the violation. It takes time for the law to catch up. Grumpy Cat Holdings LLC, the owner of Grumpy Cat’s image, sued a toy company last fall for $5 million for unauthorized use of Grumpy Cat’s likeness in a toy even though an agreement had been previously reached for the use of Grumpy Cat in a YouTube viral video that went awry in terms of its license scope, according to Grumpy Cat Holdings.
False Light and Invasion of Privacy— False light is like a false endorsement but goes further by adding a misrepresentation of the target’s attributes or those of a third party. For example, using people’s names and images from the social media posts of a third party, such as a friend or family member, to create a false impression about the subject. Invasion of privacy laws vary by state, but generally must prove a "reasonable expectation of privacy." A court must also determine if the use outweighs the public’s right to know or accept the defense of newsworthiness.
Fraud and Misappropriation—Using the name of another without the individual’s permission may be actionable as a fraud, misrepresentation of one’s identity, and misappropriation of their right of publicity. If you used someone’s name in connection with a financial transaction, you are liable for damages.
Vicarious Liability—Even if you did not personally infringe a third party’s name or trademark, you may still be liable for the actions of others. An employer, supervisor, or manager may be subject to liability if they had the opportunity to prevent the infringement but chose not to do so. Much like the cat peering into the fish bowl, you may still be liable.
Damages—For each violation of the law you may be subject to statutory and punitive damages, attorney fees, and the loss of profits from the infringing product or service.
Use of Name Exceptions: Fair Use and Creative Expression
There are some exceptions and considerations around the fair use of the name of a public figure that would permit the use of someone’s name in commercial speech without their permission. Some courts have found that the use of a single or purely distinctive name, used as a form of descriptor or identifier and not for purely commercial reasons, is an exception to the permission rule and constitutes fair use. Often the person’s name must be an inextricable part of the idea being discussed for this exception to apply. There are other limitations and exceptions, however, so a proper analysis would require consultation with a qualified attorney.
For example, the American Bar Association section of intellectual property law recognizes exceptions where it does not involve a famous person’s name and no commercial focus (such as where the use is relatively small, incidental, or oblique and used only for the purpose of identifying or describing that person as opposed to a product or service). In cases involving celebrity endorsements or, conversely, parody, the use of another’s name may be covered by first amendment privileges, to the point that where an actor endorsed a product without the actor’s permission, a court found the action not to be a trademark violation but rather First Amendment-protected artistic expression.
As with many questions in the law, the answer to whether or not someone is using another’s name without permission, and without infringing on their right of publicity, is covered by an exception to that general rule of permission, is always going to depend on the specific facts of any given situation.
Precedent and Case Law on the Use of Names
Courts have dealt with the issue in real life as well. The case of Polydoros v. Twenty One, Inc., No. 4:08-ev-04997, 2011 US Dist Lexis 131725 (D. Ariz. Oct. 28, 2011), demonstrates just how far these cases can go. In that case, a hotel’s website (Sofa Sal) advertised a group of twenty-one people arriving to Katmandu, Nepal. Unfortunately, it was actually a group of twenty-one people who were members of Heaven’s Gate, the religious cult that gained notoriety in the 1990s when thirty-nine of its members committed mass suicide in March 1997. Heaven’s Gate was able to enjoin Sofa Sal from using the name of its members in its promotional material without its consent. As a result, their flight, which was scheduled to depart for Nepal on the date of the enjoined flight, was rescheduled for some five weeks later. In addition, the court awarded Heaven’s Gate $4.5 million in damages and attorneys’ fees, this amount increased eight-fold when the district court granted Heaven’s Gate attorneys’ fees , after finding that the Hotel’s violation of Heaven’s Gate’s rights was willful and deliberate.
Other cases have also resulted in significant damages awards for using an individual’s name without that person’s permission. Evans v. Jeff D., 475 U.S. 717 (1986) (injured and incapacitated childhood victim of sexual abuse was entitled to attorney fees to be paid as part of the $1 million restitution award); Whitten v. ARB, No. 3:05-cv-1363-P, 2006 WL 770954 (N.D. Tex. Mar. 27, 2006) (no antitrust liability for using a trademark without authorization if fair use applies); Kimbro v. Oliney, No. 1:00-cv-184; 2002 WL 343671 (E.D. Va. Feb. 1, 2002) (permanently enjoining a bankrupt debtor from interfering with the Plaintiff’s right to use his name); Boullion v. Bayou Fed. Sav. Bank, No. 88-cv-1939, 1988 WL 152667 (E.D. La Dec. 30, 1988) (ordering and affirming an award of $5,000 for each day of use of the name sought to be protected under § 43(a); see also 15 U.S.C. § 1117 for authorized fees and damages).
Obtaining Permission to Use a Name
If you intend to use someone else’s name, whether for a blog post or some other publishing endeavor, the best course of action is to get permission. Written consent can be obtained by drafting and agreeing to an appropriate "blanket release" or "guarantee" from the person whose name you intend to use. When it comes to public figures (and not just there), the law also requires that you expressly disclose to that person all of the specific ways in which you intend to use his or her name.
In addition, if you are a corporate entity and plan to use someone else’s name, consider the protections afforded by a well-drafted "Objective Consent Agreement" that spells out the specific ways in which that person’s name will be used. Such an agreement also defines the boundaries of your liability if you should turn out to have used that name or some part of it in some way that the person disapproved of.
For example, let’s say that a well-known public figure has authorized you to use his name in a specific limit number of commercial spots on one particular television network during one particular quarter. Later, you realize that you need to air a few more spots than you originally authorized, on other networks, and for a quarter longer than you originally thought you would need.
Should that happen, without the proper agreements, you would likely have to obtain additional permission from the person whose name you used. If you fail again to secure permission for these new uses, you could find yourself in breach of the agreement you initially established with that person.
Legal Actions for Unauthorized Use of a Name
When an individual’s name is used without their permission, it can be a violation of several laws, including state and federal laws. If an individual was investigating a company that used their name without permission in an advertisement or a commercial website, and that company does not have a good faith reason for doing so, there could be remedies provided by law for that individual.
Confusion and fraud are the two primary forms of injury that may be compensated if an individual’s name was used inappropriately by someone else or if confusion would have resulted, had others viewed that name. For example, if someone used your home address to register a website domain name, and then used that domain name to unfairly compete against another company, the injured party may bring an unfair trade practices action against that individual. That would be true even if the injured party did not suffer immediate financial loss.
Some legal actions available for someone whose name has been used without permission include:
Unfair competition
Misappropriation (such as taking a likeness or infringing one’s image)
False advertising
False endorsement (which occurs when an individual’s likeness or other identifying characteristics is used without permission to promote a brand , service, or product)
Fraud
Invasion of privacy (such as state civil claims for misappropriating an individual’s right to publicity)
Intentional infliction of emotional distress (used for extreme or outrageous conduct by the defendant)
Defamation
Negligence (if the individual’s conduct caused, or was likely to have caused, injury to another, and the individual’s conduct creates harm to another person)
After a claim of the unauthorized use of an individual’s name, especially if that name carries no monetary value and the use was only to identify the individual, there is a chance that the owner of the name will voluntarily discontinue the impermissible conduct. Sometimes, however, this is not the case, and there are further legal actions that can be pursued.