Technological advances have made it easier than ever to use a person’s name, voice or likeness in advertising. But before doing so, it is imperative to understand the legal framework that protects individuals who have not consented to such use.
Rights of publicity and privacy are generally governed by state law. For example, Idaho is in the minority of states in the U.S. that do not recognize a “right of publicity,” which protects an individual’s ability to control the commercial use of their name, image and likeness. However, Idaho does provide certain protections against the unauthorized uses of a living person’s name or likeness under the umbrella of privacy rights, particularly through its common law "invasion of privacy" law and regulations against the unauthorized use of drones to take photos or videos of an individual. In addition, the unauthorized use of a person’s name, voice, or likeness for a commercial purpose would also likely violate the Idaho Consumer Protection Act, which makes it illegal to cause confusion about an individual’s sponsorship or certification of goods or services.
These state-specific limitations should be top-of-mind before using an individual’s identifying characteristics to market goods or services. Notably, there has also been a wave of proposed federal legislation this year addressing the unauthorized use of an individual’s name, image, voice or likeness, whether the content is real or AI-generated. We expect to see several of these laws enacted next year. Overall, the risks associated with using a person’s identifying characteristics without consent are not likely worth the reward.
Before embarking on your next project featuring anyone’s name, image, voice or likeness, we recommend consulting with an attorney to ensure you’re in compliance with the law. The authors of this article and the other capable intellectual property attorneys at Parsons Behle & Latimer would be happy to assist or answer any questions you may have.
