This page covers legal information specific to the Commonwealth of Virginia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Virginia law generally forbids unauthorized use of a person's name or likeness for commercial purposes. There is no common law right of action for misappropriation or right of publicity in Virginia, but Virginia law does provide a statutory right of action against misappropriation. Because the statute contradicts prior common law, courts have applied the statute very narrowly.
It is also a criminal offense to use a person's name or picture for a commercial purpose without authorization in Virginia. A violation of Title 18.2, Chapter 6, Article 8, Section 216.1 of the Code of Virginia is a misdemeanor punishable by a fine of not less than $50, and not more than $1000.
Virginia codifies its statutory right against misappropriation at Title 8.01, Chapter 3, Article 3, Section 8.01-40 of the Code of Virginia. You should first familiarize yourself with that statute.
THE STATUTORY RIGHT
What the Statutory Right Against Misappropriation Protects
The statute, as it has been narrowly construed, provides a cause of action only when a "person, firm, or corporation" uses an individual's "name, portrait, or picture." Other identifying traits, such as voice or personality, and identifying descriptions do not trigger the cause of action. The statute also likely does not provide any protection to businesses or other legal or corporate entities. While the Supreme Court of Virginia has not addressed that question, local and federal courts have found that, within the context of the statute, the term "person" refers to an individual.
What Constitutes a Statutory Violation
The statute only prohibits use of person's name or image for trade or advertising purposes. Use for advertising purposes and for purposes of trade are distinct concepts.
Unauthorized use of a name or likeness for advertising purposes "has almost uniformly been held actionable" in Virginia. Town & Country Props., Inc. v. Riggins, 457 S.E.2d 356, 395 (Va. 1995). A name or likeness is used for advertising purposes when "it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service." Id. This can include a personal publication. In Town & Country Properties, the Supreme Court of Virginia held a real estate broker liable for attempting to generate interest in a property by distributing fliers advertising that a professional football player had formerly lived there, without permission from the player. A local Virginia court has also held that use of a person's name as part of a commercial web address violates the statute. Crump v. Forbes, 52 Va. Cir. 52 (Warren County 2000).
It is much more difficult to invoke the statute against a party for improperly using a name or likeness for purposes of trade. While "purposes of trade" is not defined in the statute or case law, courts most often discuss it in juxtaposition to newsworthiness. Courts have expressed concern that interpreting ‘purposes of trade' too broadly would discourage the uninhibited dissemination of ideas. For instance, in Falwell v. Penthouse International, the Court found that a magazine interview with a prominent figure was not used for purposes of trade, even though, like "everything that appears in a magazine" it was placed there with the intention of increasing sales. 521 F.Supp 1204, 1210 (Va. 1981). However, in Arlington v. New York Times Co. (New York law is very similar to Virginia law in this area, and Virginia courts frequently look to New York law for guidance. Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir. 1986) rev'd on other grounds sub nom Hustler Magazine, Inc. v. Falwell.), the New York Court of appeals found that, while a claim could not be sustained against a news publisher that used a citizen's image in conjunction with a news story, a claim could be brought against the photographer and agent who sold the picture to the newspaper. The court stated that a person "operating independently of [a] publisher" who engaged in "nonconsensual selling of [a] photograph" would have "commercialized the photograph in furtherance of his trade." 55 N.Y.2d 433 (1982).
The statute does not apply to general newsgathering. A person's name or image may be used to promote a report on a newsworthy event or matter of public interest as long as there is a real relationship between the use of a person's name or image and the report, and the report is not an advertisement in disguise. In WJLA-TV v. Levin, the Court decided that a television station did not violate the statute when it used the image of a surgeon who had been accused of sexually assaulting his patients in promotional announcements for a news segment regarding the allegations. The Court conceded the station may have used the promotions partially to increase its ratings during sweeps week, but concluded that the station had not violated the statute, because "[i]t is a newsworthy event and a matter of public interest when a physician is accused by his patients of sexually assaulting them." WJLA-TV v. Levin, 564 S.E.2d 383, 395 (Va. 2002).
Who Can Exercise the Statutory Right Against Misappropriation?
The person whose name or image has been used without consent can bring an action against the offending party within five years of the offense. For twenty years following a person's death, his or her likeness may not be used without the written consent of that person's survivors. Survivors may bring an action for misappropriation under this statute up to twenty years after the death.
Individuals have the right sue for injunctions preventing offending parties from misappropriating their names and images, as well as, in some circumstances, the right to sue for damages both to compensate for injuries caused by the misappropriation and to punish the offending party.
1. Injunctive Relief
Section 8.01-40 allows a person whose identity has been misappropriated to ask a court to prevent the offender from continuing to use the identity, or, where potential misappropriation is discovered before the name or image is used, to prevent the potential offender from using the identity without consent.
2. Compensatory Damages
A person whose name or image has been misappropriated may sue to recover damages to compensate for any injury he or she suffered as a result of that misappropriation. It is unclear what qualifies as an "injury" under the statute. A celebrity who would generally expect a fee in return for an endorsement can clearly sue to recover the amount of a reasonable fee. In Riggins, the Supreme Court of Virginia affirmed the jury's decision to grant Riggins (a famous football player featured on a real estate flier without his consent) $25,000 in compensatory damages based on evidence that $25,000 would be a reasonable fee for use of his name and that Riggins had received fees for product endorsements running from $20,000 - $90,000.
While the Virginia courts frequently discuss the statute as protecting a property interest in a person's identity, which would indicate that a layperson could receive some minimal compensation for misappropriation of identity, the courts have not applied it in this way. Riggins is the only reported case awarding compensatory damages under this statute, and a Virginia circuit court has held that, under the plain language of the statute, a person can only recover compensatory damages if he or she can show that a quantifiable injury flowed from the misappropriation.
3. Punitive Damages
A jury may award punitive damages if the defendant knowingly used the plaintiff's name or likeness and the use violated the statute. The plaintiff does not need to prove that the defendant knew that he or she was engaging in illegal conduct or that that the defendant engaged in "wanton or malicious" conduct. Punitive damages cannot exceed $350,000. In Riggins, the court affirmed the jury's decision to grant Riggins an additional $25,000 in punitive damages (the court reduced the jury's award from $28,608, since that amount exceeded the amount of damages Riggins had requested).
LIMITATIONS AND DEFENSES
The Constitution prevents the publication of news from constituting a "purpose of trade" under the statute. As a U.S. District Court found in Falwell v. Penthouse International, if the "purposes of trade" requirement were construed to cover general newsgathering, it would "intrude on important constitutional freedoms, which guarantee the uninhibited dissemination of ideas." 521 F. Supp. 1204, 1210 (W.D. Va. 1981). In finding that a newspaper had not violated an assault victim's right to privacy under the statute by publishing her name as part of a news story, a Virginia circuit court held that, "[T]he right of the individual to privacy is limited by the public's right to have a free dissemination of news and information." Barker v. Richmond Newspapers, Inc., 14 Va. Cir. 421 (1973)
The use of the plaintiff's name must be reasonably believable to fall within the statute's protection. If a name of image is used as part of a parody that is not reasonably believable, it is not used for advertising or trade purposes under the statute. In Falwell v. Flynt, the Fourth Circuit found that a comedic ad-parody was not reasonably believable when it featured the photo of a well-known reverend along with the text of a fictional interview in which he discussed an incestuous rendezvous with his mother in an outhouse. The add was not reasonably believable both because of its content and because it contained a disclaimer reading "ad parody-not to be taken seriously." 797 F.2d 1270.
The fact that the assertion made in the unauthorized material is true is not a defense to a claim under the statute. For example, in Riggins, the advertising fliers correctly stated that Riggins had lived in the house the real estate agent was selling. Yet the court decided that the right to print truthful information does not include the right to use that information for commercial purposes.
Statute of limitations
Claims under Virginia's statutory right of publicity are subject to a five-year statute of limitations as a claim for injury to property under Va. Code § 8.01-243(B). Lavery v. Automation Mgmt. Consultants, Inc., 360 S.E.2d 336, 339 (Va. 1987).