Thanks to reality TV, an average citizen can become instantly famous. Moreover, as the whole of show business knows, celebrity is but the right role away for every actor. The next thing you know, your photo is at every bus stop and your name is being used to peddle everything from toothpaste to life insurance. So, how do you protect your image from being used for commercial purposes without your permission?
United States copyright law protects your photograph or other likeness from being used by a third party without authorization from the owner of its copyright. (The artist who created the likeness or took the photograph is the copyright owner—not the subject.) If the photo is used without permission, the owner of the copyright may bring a lawsuit against the infringer.
Unlike U.S. copyright law, which protects the tangible manifestation of the creative ideas embodied in an artistic work, trademark law protects the names and symbols that identify goods and services to consumers. In general, it is not possible for a person to trademark his or her image. A celebrity, however, is by definition someone whose name or likeness has a high level of public recognition. As such, people with celebrity status have an economic interest in their identities. If a specific image of a celebrity is consistently used to identify a product or service, that image can function as a trademark that is then capable of being protected. In the event that a third party uses that image in a manner that is misleading to the public (e.g., the use of Fred Astaire's photo in advertisements for instructional dance videotapes), the celebrity may have a cause of action for trademark infringement.
This may seem obvious, but keep in mind that if a celebrity wishes to assert trademark protection of his or her name or image, he or she must have been a celebrity at the time the infringement occurred. In other words, a "has been" who isn't on the "comeback trail" is not likely to be able to claim trademark infringement for the use of his or her photo. A trademark protects the economic interest of the trademarked item. So if the celebrity was not yet a celebrity (or is no longer a celebrity) at the time of the infringement, there is no economic interest at risk.
Even if a person is a celebrity at the time his or her image is used, not every commercial use will constitute an infringement under trademark law. For example, in a recent court case, an actor sued a toy manufacturer for marketing an action figure of the character he played in a summer blockbuster. The court determined that only the character's persona was invoked by the action figure, not the actor's personal character, and that not every likeness of a celebrity could be protected as a trademark. The action figure was not an infringing use of the actor's image.
Whenever a celebrity's name or image is used to endorse a product, a tension is created between First Amendment free speech and consumer protection. Courts have applied various tests to balance the tension between free speech and protecting a celebrity's image. One of the most established tests is the "likelihood of confusion" test, which holds that a trademark infringement will occur if the consumer is confused about a product's source by the use of a celebrity's image (again, Fred Astaire and the dance videos). Another test applied by the courts is the "alternate method" test, which requires not only a likelihood of confusion, but proof that there is an alternate way to express the commercial idea and that the use of the celebrity's image is not unique to expressing that idea. For example, the movie Debbie Does Dallas infringed upon the trademark of the Dallas Cowboys cheerleaders because there were alternate ways to express the filmmaker's message about sex in sports without the use of the distinctive cheerleader uniforms.
When safeguarding a celebrity's name or image, it is important to keep in mind that misleading and confusing speech is not protected by the First Amendment. A celebrity who carefully cultivates his or her name and image can be protected from their unauthorized use in the marketplace through the protections granted by trademark law.<