Using someone’s likeness without permission is commercial misappropriation: the unauthorized use of a person’s identity for the user’s commercial advantage. It is the core tort inside the right of publicity, and in the United States it is governed by state law, not federal law, through a patchwork of common law rules and statutes that vary considerably in scope and remedy.
The doctrine is narrower than most people assume, because it is a purpose test, not a copying test. Publishing a photograph of a stranger is not misappropriation. Putting that same photograph on a billboard to sell mattresses is. The question courts ask is never “did you use the image” but “did you use the person’s identity to sell something.” Everything else in this area of law is an elaboration on that distinction.
Most states track the Restatement (Third) of Unfair Competition § 46 and the common law formulation set out in Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983). Four elements:
California layers a statute on top of the common law rather than replacing it. Civil Code § 3344 creates liability for a knowing use of another’s name, voice, signature, photograph, or likeness on products or in advertising, and requires a “direct connection” between the use and the commercial purpose. Plaintiffs routinely plead both, because the statute is narrower on elements but far better on remedies.
That coexistence matters. The statute reaches photographs and actual voices, not imitations or evocations. When Ford hired a singer to imitate Bette Midler for a car commercial after Midler refused the job, the Ninth Circuit in Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), held the statute did not apply because no actual voice of hers was used, then let her proceed on the common law tort anyway. The older doctrine fills the statute’s gaps.
This is the load-bearing distinction in the entire field. In advertising, liability is close to automatic. In expressive works, the First Amendment takes over and the plaintiff usually loses.
When identity appears in a paid advertisement for an unrelated product, there is no serious balancing to do. Commercial speech proposing a transaction receives reduced constitutional protection, and the defendant almost never has a speech interest worth weighing. The analysis is essentially whether the person is identifiable and whether they consented.
Move the same use into a book, a film, a song, a painting, a news broadcast, or a video game, and the framework changes completely. Courts reach for balancing tests, principally the transformative use test and Rogers v. Grimaldi, and defendants win most of the time. The Supreme Court has decided exactly one right of publicity case, Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), and it went for the plaintiff, but on unusual facts: a news station broadcast a human cannonball’s entire fifteen second act, appropriating the whole performance rather than reporting on it.
So the first question in any misappropriation analysis is not about the person. It is about what the use is. That routing decision predicts outcomes better than any fact about fame, damages, or intent.
Courts protect the persona, not a particular medium of depiction. Anything that reliably calls the person to mind can be misappropriated:
White is the outer edge, and it drew a famous dissent from Judge Kozinski, writing from the denial of rehearing en banc, 989 F.2d 1512 (9th Cir. 1993), warning that the majority had made “identity” so elastic that ordinary reference becomes actionable. It remains Ninth Circuit law, and it remains contested.
Consent is a complete defense within its terms and worthless outside them. A release is a contract, read like one, and its scope, media, duration, and territory limits all bind the user.
Two structural mistakes recur. The first is confusing copyright ownership with identity rights: a photographer owns the copyright in the photograph and can license it freely, but that license conveys nothing about the subject’s persona. A stock image bought with a valid copyright license can still be a § 3344 violation if no model release covers the use. The second is scope creep, using an image licensed for editorial or internal purposes in a paid campaign.
Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), is the clean illustration. Eleven professional models, including Carmen Electra, found their photographs used to promote New York nightclubs, which conceded they held no rights to the images. Six of them had sued within New York’s one-year limitations period, and as to those six the Second Circuit held the models were entitled to summary judgment on liability under New York Civil Rights Law § 51. The rest, Electra among them, were time-barred, a reminder that this claim goes stale fast. The court separately affirmed dismissal of the federal false endorsement claims, treating them as weaker precisely because relatively unknown models could not show that consumers inferred an endorsement.
The same problem shows up inside ordinary businesses. Employee photographs on a careers page, customer faces in a testimonial reel, a contractor’s headshot left on a site after the engagement ends: each is an identity used for commercial advantage, and each needs consent that covers the use and survives the person’s departure.
Three limits keep the tort from swallowing ordinary publishing.
Newsworthiness and public affairs. Section 3344(d) exempts uses connected to news, public affairs, sports broadcasts, and political campaigns. The exemption is broad, and § 3344(e) makes clear that a use appearing in a commercial medium is not by that fact alone a use requiring consent.
Incidental use. A fleeting, non-essential appearance carrying no independent commercial value is not actionable: a face in a crowd shot, a name mentioned once in passing, a magazine cover visible on a set. The rationale is proportionality, since the person’s identity was not what the defendant traded on.
Advertising a publication’s own content. This is the subtle one. In Booth v. Curtis Publishing Co., 15 A.D.2d 343 (N.Y. App. Div. 1962), aff’d, 11 N.Y.2d 907 (1962), Holiday magazine ran a newsworthy photograph of actress Shirley Booth, then reprinted it in full-page ads for Holiday placed in other magazines. A jury awarded her $17,500. The Appellate Division reversed and dismissed, holding that a publisher may republish its own protected content to illustrate the quality and nature of what it publishes. The limit: the republication must advertise the medium itself, not collaterally endorse an unrelated product.
There is no federal right of publicity, but § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), supports a false endorsement claim when using a person’s identity is likely to confuse consumers about sponsorship or approval. That gives plaintiffs a federal forum and a nationwide remedy, which the state torts do not.
It is a different theory with a different weakness. Misappropriation asks whether the defendant took commercial value from the identity. False endorsement asks whether consumers were misled about sponsorship. Fame is therefore essential to the federal claim and irrelevant to the state one, which is why the Electra models won under § 51 and struggled under the Lanham Act.
Is it illegal to use someone’s likeness without permission? It is a tort, not a crime, in most states, and it turns on purpose rather than on the act of copying. Using a person’s identity to advertise or sell something without consent is commercial misappropriation and is close to automatic liability. Using the same image in a news report, a documentary, a novel, or a painting is usually protected expression. New York is an outlier in that Civil Rights Law section 50 makes the advertising use a misdemeanor, though it is rarely charged.
What are the elements of commercial misappropriation? California’s formulation in Eastwood v. Superior Court (1983) is representative: the defendant used the plaintiff’s identity, appropriated the name or likeness to the defendant’s advantage, commercially or otherwise, without consent, and caused resulting injury. California Civil Code 3344 adds a statutory version that requires a knowing use on products, merchandise, goods, or in advertising, plus a direct connection between the use and the commercial purpose.
How much can you sue for if a company uses your photo in an ad? Under California Civil Code 3344 a plaintiff recovers the greater of 750 dollars or actual damages, plus any profits attributable to the use that are not counted in actual damages, plus punitive damages where warranted, and the prevailing party gets attorney’s fees. The common law tort has no statutory floor but no ceiling either. Tom Waits won 375,000 dollars compensatory and 2 million dollars punitive over a Doritos radio ad that imitated his voice.
Does a model release cover every use of a photo? Only the uses it describes. In Electra v. 59 Murray Enterprises (2d Cir. 2021) nightclubs used professional models’ photos in promotions with no rights to them at all, and the models who sued within New York’s one-year limitations period won summary judgment on liability under New York Civil Rights Law section 51. Releases are read according to their terms, so scope, duration, media, and territory limits all bind the user, and a photographer’s ownership of the copyright in an image conveys no right to the subject’s identity.
Going further: Using Someone's Likeness in Advertising, a practical walkthrough .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Ninth Circuit revived surfers' misappropriation claims over a catalog photo, holding a likeness is not preempted by copyright in the image.
The Ninth Circuit revived Don Newcombe's misappropriation claim, holding a beer-ad drawing of a distinctive windup could be readily identifiable as him.
Judge Jerome Frank coined the phrase 'right of publicity' in a 1953 fight over baseball-card photos, recognizing a transferable property interest in one's own image.
The Ninth Circuit held that a game-show robot could appropriate Vanna White's identity, untethering the right of publicity from name and likeness.
The Seventh Circuit held that a supermarket's tribute ad to Michael Jordan was commercial speech, stripping it of full First Amendment protection and reviving his publicity claims.
The Ninth Circuit held that a celebrity's discarded birth name remains part of his identity, reviving claims over an Oldsmobile commercial.
The Ninth Circuit let two Cheers actors take their right-of-publicity claim to trial over airport-bar robots evoking their characters.
The Sixth Circuit held that a celebrity's signature catchphrase can be appropriated even when his name and likeness are never used.
