Newsworthy? Can your name or likeness appear in an advertisement or motion picture without your consent?
An individual’s name is one of the most valued aspects of a person. Therefore, it’s understandable why almost everyone will defend his or her name when it’s used negatively in a motion picture. Similarly, most individuals will most likely prefer to not have their name used for profit without first giving consent. While these intellectual property rights are applied differently across the country, Florida law does protect persons from having their name or general likeness used commercially against their will. However, it’s paramount to understand the tensions between the lack of protection when one’s name or likeness is used in a motion picture and where the law bifurcates and does protect against it’s use in advertisements. This article will first briefly explore the protections secured by Florida’s statute for when one’s name or likeness is used in an advertisement without consent. The article will next identify how, in light of the First Amendment, a motion picture can and often does avoid liability for the use of one’s name or likeness when that use is of a “newsworthy” event.
Before an advertisement incorporates an individual’s name or likeness for profit, Florida law requires express written or oral consent from that individual. Specifically, Florida Statute section 540.08 provides that, “no person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertisement purpose the name, portrait, photograph, or other likeness of any natural persona without the express written or oral consent to such use given by” such person or any other person authorized to give such consent. Fla. Stat. § 540.08 (2007). For example, in John Daly Enter., LLC v. Hippo Golf Co., Inc., 646 F. Supp.2d 1347 (S.D. Fla. 2009), John Daly, a professional golfer, brought a lawsuit against a golf company for commercially exploiting Daly’s name and likeness on its website in order to promote the company’s golf equipment. Id. at 1351. The court found the golf company liable for violating the Florida statute prohibiting unauthorized commercial. The court reasoned that the phrase displayed on the website, “twice major winner and golfing superstar,” directly promoted the company’s products. Id. at 1351-52. Because consumers inevitably purchase products that are endorsed and advertised by celebrities, John Daly Enter., LLC demonstrates how section 540.08 of the Florida Statutes protects an individual against companies from merely using one’s name and capitalizing off its value.
However, the Florida Supreme Court explained that the law protecting the unauthorized publication of name or likeness does not include motion pictures that do not directly promote a product or service. For instance, in Tyne v. Time Warner Entertainment, 901 So.2d 802 (Fla. 2005), the Florida Supreme Court addressed whether Warner Bros. film The Perfect Storm, which was based upon a story of a fishing vessel caught in a storm and lost at sea, violated the statute protecting the unauthorized publication of one’s name. After relying on Florida jurisprudence and the intent of Florida’s legislature, the court decided, albeit narrowly, that the statute did not apply to publications because motion pictures are entitled to protections under the First Amendment. Id at 809-10. In the court’s reasoning, it explained that the use of one’s name or likeness must be used to directly promote a product or service. The court noted that the statute’s language was not meant to “be construed to bar the use of people’s name in such a sweeping fashion” because of the substantial confrontation with the freedom of the press and speech. Id. at 806.
In sum, under section 540.08 of the Florida Statutes, Florida courts permit a plaintiff to recover when the defendant uses the plaintiff’s name or likeness to directly promote a product or service. On the other hand, courts have repetitively held that a plaintiff cannot recover when the plaintiff’s name or likeness is used in a motion picture because of the protections under the First Amendment. While the law is constantly evolving, there is no question that ongoing problems such as promotions through social media will eventually clash with the statute and will be forced to appear before the courts.