Celebrity Endorsements
A company may use a celebrity (or look-alike or sound-alike) to endorse its product, provided the celebrity consents to the endorsement. Failure to receive the proper consent, may subject the company to liability for violating the celebrity’s right of privacy and publicity. This right is granted to protect famous people from those who seek to commercially exploit their names, voices or images.
The Average Person's Right to Privacy
People who have not achieved notoriety because of their commercial activities also have a right of privacy, and, thus, a claim, if their names or likenesses are used in an advertisement without their consent. The public at large, your neighbor, your co-worker, and your employees must grant you permission before you can rightfully use their names, voices or likenesses for advertising purposes.
However, the rights of the less famous are more limited and subject to an exception. Where an individual in a photograph is not the focal point of the ad, but rather is merely an incidental part (e.g., head in a crowd, a member of an audience), it may not be necessary to secure that individual's written permission before the photograph can be used commercially. Nevertheless, if reasonably practical or feasible, it is probably a good idea to get a signed photo release whenever possible.
The Release
When you plan to use the name, likeness, voice, or photo of another in your ad campaign, you should get a written release. The release should be worded in such a way as to give your business permission to use the name and likeness or, where relevant, the person's voice, for any and all purposes, including advertising your business. This will protect you if, for example, the individual ultimately becomes popular and you wish to use the photos you obtained before the individual became a celebrity.
The Conclusion
Before using the name, likeness, voice, or photo of another person in your advertising campaign consult a local attorney familiar with entertainment law or intellectual property law to get a properly drafted signed written release. A release of this type can usually be had for minimal expense and can save you thousands of dollars down the road.
