The EveryMan’s Right to Publicity … and Privacy

Blog post by Mark W. Siler

Near the end of the Wisconsin Statutes, back amongst the codification of Fire Prevention Week (the week during which October 8 – the date on which both the Peshtigo Fire and the Great Chicago Fire started in 1871 – falls), William G. Hoard Day (October 10th, celebrating the 16th Governor of the State of Wisconsin) and Ronald W. Reagan Day (February 6, celebrating the 40th President of the United States) is a law that is far more important to individuals than its placement in the statutes may indicate. Wis. Stats. § 995.50 sets forth the right of privacy in Wisconsin.

The law includes the protection you would expect in a right of privacy statute, that is, protection from “intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner that is actionable for trespass.” Wis. Stats.§ 995.50(2)(a). However, there is another aspect of the law which may be less intuitive.

Under the law an “invasion of privacy” includes “[t]he use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.” Wis. Stats. § 995.50(2)(b). This right is often referred to as the right to publicity. It is generally a right to control how one’s personality and image are used in commerce (with certain fair use exceptions) and was originally recognized in Wisconsin at common law. See Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 280 N.W.2d 129 (1979).

Until recently, most people would not have worried about their name or likeness being used by a third party for business purposes, mostly because such personal information would have been difficult to obtain and the return on its use for a business would have been negligible. However, with the ever expanding proliferation of social media and other online content, access to personal information, including photographs, as well as the profile of even everyday individuals, has increased greatly. This may lead to a situation where a person who would have once been nearly anonymous has an online following which makes his or her personality worth exploiting by an unscrupulous business.

In the event that a person finds that his or her name or image is being exploited for business purposes, he or she may be entitled to relief under the right of privacy statute. This relief includes equitable relief such as an injunction to stop the use by the offending party, damages based on the person’s loss or the unjust enrichment of the business and an amount for reasonable attorney’s fees. Wis. Stats. §995.50(1).

This right, which initially was only really relevant for celebrities, may now be useful to anyone with any sort of online presence, including a presence on social networking sites and commercial websites. Therefore, in the event that you find someone using your name or likeness for business purposes without your written permission, it may be worth exploring whether you are entitled to relief under the Wisconsin right of privacy statute.

Disclaimer

The comments and opinions expressed in this blog are intended for informational purposes only and do not constitute legal advice. Reading or using the information in this blog does not create the existence of an attorney-client privilege. Due to the changing nature of the law, the blog posts may contain dated material. For an update on the current law and the application of the law to your particular facts and circumstances, consult a legal advisor. The information contained herein is not a substitute for obtaining legal advice from a qualified attorney licensed in your state.