Between Cher And Joe Montana - When Is It Okay To Use A Person's Image To Advertise A Protected Use Of That Image?
In deciding whether the unauthorized use of a third party’s name, voice, likeness or persona (collectively, “Image”) violates such third party’s publicity rights, the first level of inquiry is whether the use is properly categorized as a “commercial” or a “non-commercial” use. If an Image is used without permission in a non-commercial or “newsworthy” context, such use is generally protected so long as the Image used is reasonably related to the aspect of the use that makes it newsworthy, and so long as less than the Image owner’s “entire act” is used.
Distinguishing between commercial and non-commercial uses is a context-specific inquiry, and describing the precedent on that issue is beyond the scope of this article. But where the underlying use is concededly non-commercial, such that permission does not need to be obtained from the person whose Image is depicted, this Adbriefs blog post briefly addresses whether the Image can also be used to advertise or promote the underlying use without giving rise to a valid right of publicity claim by the person whose Image is depicted.