Your likeness does not become public property when you post it. An influencer’s right of publicity, the right to control the commercial use of your name, image, voice, and persona, survives every upload, and the platform’s terms of use do not transfer it to anyone who scrolls past. What social media changes is not the doctrine but the volume: millions of images, held by owners who are not their subjects, flowing into advertising that nobody licensed.
The confusion in this area almost always comes from collapsing three separate legal layers that happen to touch the same photograph. There is copyright, owned by whoever pressed the shutter. There is the right of publicity, owned by whoever is in the frame. There is the FTC’s advertising-disclosure regime, which cares about neither ownership question and asks only whether the audience was misled. A brand can clear one and be liable under the other two.
When you accept Instagram’s or TikTok’s terms, you grant the platform a broad, non-exclusive, royalty-free, transferable license to host, reproduce, display, and distribute your content. That language reads alarmingly, and it is genuinely broad. It is also a license to the platform, not to the public.
The distinction was litigated directly. In Sinclair v. Ziff Davis, LLC, the Southern District of New York first held in April 2020 that Mashable could embed a photojournalist’s public Instagram photo because Instagram’s terms sublicensed public content to embedders. Weeks later, in McGucken v. Newsweek LLC, Judge Failla rejected the same defense: Instagram’s terms contemplate embedding but nowhere expressly grant a sublicense to third parties. The Sinclair court then reversed its own ruling in light of McGucken. The settled position that emerged is that platform terms do not silently hand your content to everyone with an embed code, and they certainly do not hand a stranger the right to put your face on an ad.
So the answer to the most common question in creator law is short. Posting does not give brands your face. It gives the platform the operational rights it needs to be a platform.
Photographs are where creators lose track of the analysis, because two rights sit in one image and they belong to two different people.
The photographer owns the copyright the instant the shutter fires. You own the publicity right in the identity depicted. Neither swallows the other. That is why the most counterintuitive fact pattern in this area is real: celebrities get sued for posting pictures of themselves. Xposure Photos sued Khloe Kardashian in April 2017 over an Instagram post of a paparazzi shot of her outside a Miami restaurant, seeking statutory damages plus a claim for removing copyright management information. Xclusive-Lee sued Gigi Hadid in 2019 on the same theory; Judge Chen dismissed it in July 2019 because the agency had only applied for registration, not obtained it, which Fourth Estate Public Benefit Corp. v. Wall-Street.com (2019) requires before filing suit. Note what defeated the claim: a registration technicality, not the idea that Hadid owned her own photograph. She did not.
The practical consequence for a brand is that it needs both clearances. A license from the photographer gets the pixels. A release from the subject gets the identity. Buying one and assuming it covers the other is the mistake that produces most of the demand letters in this space.
User-generated content campaigns are the classic exposure. A customer posts a photo wearing the product, tags the brand, uses the hashtag. The brand reposts it. Then the brand puts it in a paid social buy, a landing page, an email, an in-store display.
Somewhere along that path the use crossed from speech into advertising, and the right of publicity attaches to commercial use. Tagging a brand is not a license, a hashtag is not a license, and a comment saying “love this” is not a license. There is no doctrine of implied consent that gets a brand from “you mentioned us” to “we can sell with your face.” State law supplies the cause of action: California Civil Code § 3344 provides statutory damages of $750 or actual damages, whichever is greater, plus profits attributable to the use, and New York Civil Rights Law §§ 50 and 51 make unauthorized use for advertising or trade actionable and, in § 50, a misdemeanor.
This is why competent UGC programs collect an explicit written rights grant rather than relying on a hashtag, and it is why the practical scope questions, term, territory, media, whitelisting, matter so much. Those mechanics are covered in the task-level guide linked from this page.
The right of publicity is state law. There is a federal claim that runs alongside it: Lanham Act § 43(a), 15 U.S.C. § 1125(a), which reaches uses likely to confuse consumers about sponsorship or approval. False endorsement does not require the defendant to have used your photograph at all. It requires that the audience be misled into thinking you endorsed something.
The Ninth Circuit drew that perimeter wide in two 1992 decisions. In Waits v. Frito-Lay, a Doritos spot used a singer imitating Tom Waits’s distinctive voice; the jury awarded $375,000 compensatory and $2 million punitive damages on voice misappropriation, and the false endorsement claim stood alongside it. In White v. Samsung Electronics America, a robot in a wig and gown beside a letter board evoked Vanna White without her name, face, or voice, and the court still found her identity appropriated. Applied to social media, the doctrine covers the AI-generated testimonial, the fabricated “as seen used by,” the sound-alike voiceover, and the deepfaked product review.
Disclosure obligations run on a separate track. The Endorsement Guides at 16 CFR Part 255, revised effective July 26, 2023, require that any material connection between endorser and advertiser be disclosed clearly and conspicuously. A connection is material if it would affect the weight or credibility the audience gives the endorsement. That reaches free product, gifted stays, affiliate links, discounts, and family relationships, not merely cash.
The 2023 revision tightened “clear and conspicuous” to mean difficult to miss and easily understandable, and in interactive media, unavoidable. A disclosure buried behind “more,” dropped in a hashtag thicket, or shown for two frames of a sixty-second video does not qualify. Liability runs to the advertiser and to the creator, and the Guides now speak explicitly to platforms.
Note that FTC compliance and publicity clearance are orthogonal. A perfectly disclosed #ad can still violate someone’s right of publicity if the brand never licensed the face in it, and a fully licensed campaign can still draw an FTC action if nobody disclosed the payment.
Two frontiers are moving fast. The first is AI replication. Tennessee’s ELVIS Act, the Ensuring Likeness, Voice, and Image Security Act of 2024, was signed March 21, 2024 and took effect July 1, 2024. It added voice to the personal attributes protected by Tennessee Code § 47-25-1103, and it created civil liability for distributing an algorithm, software, or tool whose primary purpose is producing an individual’s photograph, voice, or likeness without authorization. Because the existing misdemeanor provision at § 47-25-1105(b) keys to the unauthorized use defined in subsection (a), which the Act rewrote to include voice, the criminal exposure is a Class A misdemeanor. The second is post-mortem duration. New York Civil Rights Law § 50-f gives deceased personalities a 40 year post-mortem right and specifically addresses digital replicas of deceased performers in audiovisual works and sound recordings.
Both point the same direction: an influencer’s likeness is being treated less as a personal dignity interest and more as a durable asset with a term, an owner, and a market.
Does posting on Instagram give brands the right to use my face in their ads? No. Instagram’s terms grant the platform a broad, royalty-free license to host, display, and distribute what you post so the service can function. That license runs to the platform, not to the world. A third party who pulls your photo into a paid campaign is not a beneficiary of it, and needs a separate license from you for your likeness and from the copyright owner for the image. Courts in Sinclair v. Ziff Davis and McGucken v. Newsweek both rejected the argument that Instagram’s terms silently sublicense your content to anyone who wants it.
Can a brand repost my photo if I tagged them or used their hashtag? Tagging a brand or using its hashtag is not a license. An organic repost to the brand’s feed is a lower risk than an ad, but the moment the image runs in paid advertising, on packaging, or on a landing page selling something, it is commercial use of your identity and needs your permission. This is the single most common exposure in influencer work, and it is why brands running user-generated-content campaigns collect written rights grants rather than relying on a hashtag.
Who owns a paparazzi photo of me, and can I post it? The photographer owns the copyright in the image; you own the right of publicity in your likeness. They are different rights held by different people, which is why celebrities get sued for posting photos of themselves. Xposure Photos sued Khloe Kardashian in 2017 over an Instagram post of her own picture, and Xclusive-Lee sued Gigi Hadid in 2019. Neither case turned on whether the subject was in the frame, because being the subject of a photo gives you no ownership of it.
What does the FTC require influencers to disclose? Under the Endorsement Guides at 16 CFR Part 255, revised effective July 26, 2023, any material connection between you and the advertiser must be disclosed clearly and conspicuously. A connection is material if it would affect the weight or credibility an audience gives the endorsement, which covers free product, affiliate commissions, discounts, and family relationships, not just cash. The 2023 revision defines clear and conspicuous to mean difficult to miss and, in interactive media, unavoidable. Both the brand and the creator can be liable.
Going further: Influencer and creator likeness rights, the practical checklist .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The N.D. Cal. refused to dismiss section 3344 claims over Facebook's Sponsored Stories, holding ordinary users plausibly alleged their endorsements had value.
The S.D.N.Y. held New York's privacy statute is not intellectual property, so Section 230 shielded retailers, while a model's claim against the brand survived.
A jury rejected a $5 million right-of-publicity and false-light suit over Cardi B's 2016 mixtape cover, which photoshopped a man's distinctive back tattoo onto a model.
The Second Circuit revived right-of-publicity claims by professional models whose photographs were lifted to advertise strip clubs online, holding that a release signed for one purpose is not consent against the world.
The Third Circuit held that Section 230 does not immunize platforms from state right-of-publicity claims, splitting from the Ninth Circuit on the law's intellectual-property carve-out.
New York's highest court held that even a video-game character built from a reality star's biography is not actionable when the avatar is not recognizable as her.
New York's highest court held that a video-game avatar can be a 'portrait' under the right of publicity, but only if the public can actually recognize the plaintiff in it.
