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Know Where the Line Is. 


May we use an image of Elvis in our next promotion? Is it acceptable to use photographs that show anonymous individuals walking down a busy street in our advertisement? Many otherwise sophisticated businesses are not necessarily aware of the multiple problems that can arise in the areas of rights of privacy and publicity. Although these rights are generally only available to individuals, businesses must be aware of the scope of the protections accorded to private individuals.

The law regarding publicity rights, which now includes a variety of state statutes, is a rapidly developing area, and the risk of infringing these rights is amplified by the use of the Internet. It is a labyrinth within which an individual or business must find its way when it wishes to use, for commercial purposes, anything that identifies an individual. Identification can occur via voice or a distinctive style, as well as the more obvious methods of a photograph or a personal name. The right of publicity is not necessarily limited to celebrities, although issues do often arise in that context.

Individuals are also entitled to certain protection of their privacy interests. Problems can be created by invasion of such rights, including inappropriate disclosure or appropriation, even where the invasion is inadvertent. A significant number of statutes provide additional protection for confidential personal information such as medical information. 

Davis McGrath has experience in assisting its clients to protect their own interests and negotiate for use of protected publicity rights through licensing rights and assignment of those rights. We also counsel clients regarding use of material that may involve claims by others for breach of privacy or publicity rights, providing guidance about how to avoid such liability.

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