The Right of Publicity

In recent years, consumers have been able to easily satisfy their celebrity cravings through mobile applications on their phones.  With these applications, mobile phone users can see images of their favorite celebrities right from the palm of their hand.  However, there are serious legal issues implicated as the result of the unauthorized use of a celebrity image, more specifically, a violation of their rights of publicity and privacy.

While the right of publicity is not a new area of law, in the mobile application world it bleeds into a new context.  The contours of the right vary from state to state, but the right of publicity generally includes the ability to control, direct and commercially use one’s own name, voice, signature, likeness or photograph. Moreover, the right of publicity seeks to prevent the unjust enrichment from the unauthorized use of another’s good will.  In order to lawfully publish a celebrity photograph, you must receive authorization and clearance from that celebrity.  Applications using the image of a celebrity in any such manner must be licensed or they are operating illegally.  

Some mobile applications depict celebrities in a poor light.  In a particular popular application from the iTunes App Store, celebrities are featured in bikinis amongst images of non –celebrities who are similarly scantily clad.  In the event that their identity is used without permission, for some celebrities, this could cause grave harm to their public image.  This scenario implicates of a violation of a celebrity’s right of privacy, more specifically the tort of false light.  Although not recognized in every state, a false light claim is raised when a false image of a person is painted that would be offensive to a reasonable person.  In other words, if a celebrity is depicted in a false light, in an offensive manner such as in the above-mentioned mobile application, and a reasonable person is offended, the celebrity may raise a claim for the tort of false light.

With the increasing popularity of mobile applications and the profitability they generate for their developers, the use of celebrity images, without their authorization, is problematic.  In the event that these images are properly licensed, there should be no problems.  However, if they are not, mobile application developers face the threat of a lawsuit, which could result in an injunction and damages.