Commercial Use of Real Person's Likeness in Products: Understanding Legal Implications and Ethical Considerations

When a real person's likeness is used on products sold at stores, such as toys, board games, or other merchandise, the question of whether this is a commercial use of their image arises. In this article, we delve into the legal and ethical aspects of using real person's likenesses commercially.

What Constitutes a Commercial Use?

A commercial use of a real person's likeness typically involves the use of their image, name, or other identifying characteristics on products sold for profit. This can include toys, board games, clothing, or other consumer goods. If an image of a real person appears on a product display or packaging, it indicates a commercial use, especially if the image is not in the public domain.

Legal Implications and Permission

It is essential to obtain permission when using a real person's likeness commercially. Without explicit consent, using a person's image for profit can lead to legal challenges and potential financial loss. In the United States, federal law provides protection for the use of one's likeness, as detailed below:

Federal Law on Commercial Use

The Lanham Act, a federal law, addresses the use of a person's name, image, or likeness in commerce. Under the Lanham Act, it is illegal to use a person's name, image, or likeness for commercial purposes without their permission, unless the use is a fair use or falls under other legal exemptions.

(a) Civil action
Any person who, on or in connection with any goods or services or any container for goods, uses, in commerce, any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which—
A) is likely to cause confusion or to cause mistake or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

This law emphasizes the importance of obtaining consent and ensuring that the use of a person's likeness does not cause confusion or deception.

California Laws

California, with its significant market, also has its own set of laws concerning the commercial use of likenesses. These laws can provide additional protections for individuals whose images are used without permission. It is advisable to review the specific laws in your state to ensure compliance.

Public Domain and Historical Figures

Images and likenesses of historical figures are generally in the public domain and can be used without permission. However, consider the ethical implications and potential for misunderstandings or misrepresentation. Even in the case of public domain images, it is important to ensure that the use is appropriate and respectful.

Ethical Considerations

Beyond legal considerations, there are ethical concerns to be addressed when using a real person's likeness in commercial products. Consider the impact of using someone's image without their consent. What will be the consequences if the use is perceived as inappropriate? How can you ensure that the use is respectful and does not lead to harm or negative publicity?

Legal Liabilities and Consequences

The consequences of using a real person's likeness without permission can be severe. Civil actions can result in significant financial losses, and there may be additional legal and reputational risks. The use of unlicensed images in your products can lead to lawsuits, legal fees, and damage to your brand's reputation.

Creating Products That Use Public Domain Images

To avoid legal and ethical issues, consider using public domain images or obtaining the necessary permissions. For example, images of historical figures from government sources are often in the public domain and can be used freely. When creating products that feature images of public figures, you can make the argument that your use is a fair use, such as in educational or satirical contexts. However, it is crucial to research and understand the specific legal requirements to ensure compliance.

For instance, flashcards featuring images of historical presidents are often based on public domain images, and similar products can be created with the appropriate research and permissions. Additionally, using creative strategies such as parody or political satire can help in making a fair use argument, as long as the use is within the boundaries of the fair use doctrine.

Conclusion

Using a real person's likeness in commercial products requires careful consideration of both legal and ethical implications. To ensure compliance and avoid potential legal issues, it is essential to obtain permission, understand the legal frameworks, and maintain ethical standards. By doing so, you can protect your business and maintain the trust of consumers.

Keywords: commercial use, likeness permission, public domain, fair use, legal liabilities