Damages for using a person’s picture in an advertisement without permission

Elliott Stapleton Copyright

Using someone’s image, without his or her permission may fall under both the statutory right of publicity and the common law invasion of privacy causes of action. The resulting damages could be up to $10,000.00 per violation or actual damages.

For a business owner it is vital to require all models or employees in videos, photography, or any other form of advertisement or promotion to sign a well drafted model release. We prepare model releases for clients to protect against this potential violation.

Click here to schedule a free initial consultation for the creation of your Model Release Agreement or to discuss your questions on this matter.

Statutory right of publicity

The right of publicity is a tort governed by state law, under Ohio Revised Code (“ORC”) 2741. Specifically, the Ohio law states “a person shall not use any aspect of an individual’s persona for a commercial purpose…(1) during the lifetime of the individual.”  The person’s persona could include his or her name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.

Commercial purpose’ means the use of or reference to an aspect of an individual’s persona in any of the following manners:

(1) On or in connection with a place, product, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;
(2) For advertising or soliciting the purchase of products, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;
(3) For the purpose of promoting travel to a place;
(4) For the purpose of fundraising.”

The right of publicity is freely transferable but may only be used by another with the consent of the person or agent.

ORC 2741.06 creates a cause of action against one who uses a person’s likeness without consent.  ORC 2741.07 specifies damages as follows:  Actual damages, including any profits derived from and attributable to the unauthorized use of the person’s likeness (as determined by the jury); In lieu of actual damages, statutory damages of at least $2,500 and no more than $10,000.  These damages are also decided by the jury, taking into account: willfulness of violation, harm to the persona in question, ability of defendant to pay a civil reward; Punitive or exemplary damages if justified under ORC 2315.21;

In addition, the court may award the following under ORC 2741.07(D):

(1)   Attorney’s fees, court costs, and reasonable expenses to the prevailing party;

(2)   Treble damages against the advertising agency if it can be shown the agency had actual knowledge of the unauthorized use of another’s persona;

(3)   Temporary or permanent injunction relief;

(4)   Impoundment of any types of advertising media, products, or merchandise bearing the unauthorized persona.

More questions on using images online? Schedule a free initial consultation to discuss protecting your business and avoiding the potential damages listed above.

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About the Author

Elliott Stapleton

Elliott is a partner in the firm of Cornetet, Meyer, Rush and Stapleton, LPA. His business clients range from small single member companies to large privately held businesses.

Elliott’s legal services include advice on Business Formation and Transactions, Real Estate Transactions, Trademark Law, Copyright Law, Estate Planning, and Probate Administration.

Citations: ORC 2741.01(A), ORC 2741.01(B), ORC 2741.04-2471.05