This page covers legal information specific to the State of Florida. 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.
Generally speaking, the right of publicity in Florida protects against unauthorized uses of a person's name or likeness for commercial purposes. Florida has two systems of rights of publicity: a statute, and a common law right.
Florida codifies its statutory right of publicity, treated primarily as a property right, at Section 540.08, with which you should familiarize yourself. Florida also recognizes a common law right of publicity under a right of privacy.
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
Florida's statutory right of publicity creates a property right held by an individual in his or her name and likeness. See Loft v. Fuller, 408 So.2d 619 (Fla. Dist. Ct. App. 1981). Florida's statute, Fla. Stat. Ann. § 540.08, protects a person's:
- photograph, and
The term "photograph" includes still or moving pictures or reproductions of an individual. See Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); see also Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Badillo v. Playboy Entm't Group, Inc., 2006 WL 785707 (M.D. Fla. Mar. 28, 2006). The individual must be identifiable in the photograph, and not merely a member of the public who is unnamed and not otherwise identified in connection with the use of the photograph. Fla. Stat. Ann. § 540.08(4)(c).
This statute and its interpretations by Florida courts have not formally recognized the protection of an individual's voice, though it is possible that "likeness" would include this. See Neva, Inc. v. Christian Duplications Int'l, Inc., 743 F. Supp. 1533 (M.D. Fla. 1990) (suggesting that an actor's voice in a recording might be within the scope of § 540.08).
What Constitutes a Statutory Violation
Florida's statute protects against unauthorized commercial uses of an individual's name or likeness. Specifically, the statute provides that,
"No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without ... express written or oral consent."
Fla. Stat. Ann. § 540.08(1).
In Tyne v. Time Warner Entertainment Co., the Florida Supreme Court held that to find a violation of the right of publicity statute, the use must be for the defendant's benefit and done to promote a product or service, not merely for expressive purposes. See Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); see also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983).
Simply using a person's likeness in connection with a commercial product or service does not violate the statute. Rather, the statute is designed to "prevent the unauthorized use of a name to directly promote the product or service of the publisher." Tyne v. Time Warner Entm't Co., L.P., 901 So.2d 802 (Fla. 2005); see also Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). Inclusion in a product sold for profit is insufficient to constitute an unauthorized use under this statute, as there must be a demonstration the association of the name with the product is valuable and exploitative. See Valentine v. C.B.S., Inc., 698 F.2d 430 (11th Cir. 1983); Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 1255 (S.D. Fla. 2010); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). The publication or printing of a product for advertising purposes has been found sufficient to constitute a statutory violation, even when there was no distribution. Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 2004).
Florida's statute also contains exceptions for news media and prior consent, including:
- news media including newspapers, magazines, books, broadcasts, news reports, or presentations having a legitimate public interest and the use is not for advertising purposes, and
- publications connected with the resale or other distribution of literary, musical, or artistic productions or other property where the person has consented to the use of their likeness with the initial sale or distribution.
Fla. Stat. Ann. § 540.08(4).
Florida has also recognized Section 47 of the Restatement (Third) of Unfair Competition, finding exceptions for uses including "news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses." See Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d 1352 (N.D. Fla. 2010); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005).
Rights of the Deceased
Florida provides that this right of publicity lasts for 40 years after the death of the individual, and is considered a freely transferable, licensable, descendible property right. The substance of the right is the same before and after death.
Any person, firm or corporation may be authorized in writing to license the commercial use of an individual's name or likeness. Fla. Stat. Ann. § 540.08(1). If no such entity is authorized in writing, then the right belongs to the individual's surviving spouse and children. Fla. Stat. Ann. § 540.08(1). An individual's spouse is determined by the domicile's law the time of the individual's death, regardless of the spouse's later remarriage. Children includes immediate offspring as well children legally adopted by the individual. Fla. Stat. Ann. § 540.08(6).
THE COMMON LAW RIGHT
What the Common Law Right Protects
In Florida, the common law right of publicity, including the right not to have a person's name published without his or her consent, was first recognized as part of a right of privacy. See Cason v. Baskin, 20 So. 2d 243 (Fla. 1944); see also Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).
The common law right of publicity extends to any individual whose name or likeness has been exploited through unauthorized use during his or her lifetime. See Gridiron.com v. National Football League Player's Ass'n, 106 F. Supp. 2d 1309 (S.D. Fla. 2000); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). The common law right is meant to protect the privacy and integrity of an individual's name and likeness, because "Nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it." Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).
Like the statutory right, the common law right of publicity recognizes exceptions for news reporting and for authorized publishers and distributors of a work to use an individual's name to truthfully identify the work's creator. See Zim v. Western Publishing Co., 573 F.2d 1318 (5th Cir. 1978); Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955).
What Constitutes a Violation of the Common Law RightAs with the statutory right of publicity, a violation of the common law right of publicity is found when an individual's name or likeness is used without his or her consent for the benefit its value would confer on the defendant. See Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996); see also Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994).
As the right of publicity has been formally recognized by statute in Florida, decisions generally cite the statutory right over the common law right. See Facchina v. Mutual Benefits Corp., 735 So. 2d 499 (Fla. 4th Dist. Ct. App. 1999). However, the statutory right does not displace common law rights, so a plaintiff can simultaneously pursue claims under both the statute and common law. See Fla. Stat. Ann. § 540.08(6).
Under the common law right of publicity, a plaintiff may be awarded nominal damages for the unauthorized use of his or her name without proving actual harm or damage. See Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir.1978); see also Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).
Under Florida's right of publicity statute, a plaintiff may bring an action for an injunction and to recover damages to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages." Fla. Stat. Ann. § 540.08(2). A victorious plaintiff may receive prejudment interest on the damages awarded. See Bosem v. Musa Holdings, 46 So. 3d 42 (Fla. 2010).
LIMITATIONS AND DEFENSES
Both the common law and statutory rights of publicity recognize consent as a defense when the individual consents to the use of his or her name or likeness. See v. Anheuser Busch, Inc., 348 F. App'x 547 (11th Cir. 2009); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).
In addition, all right of publicity claims are limited by the First Amendment. See Valentine v. CBS, Inc. 698 F.2d 430 (11th Cir. 1983); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). As discussed above, the statutory right of publicity includes a safe harbor for press coverage of legitimate public interest at § 540.08(4) and the common law recognizes similar protection of news reporters. See Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955).
The common law and statutory rights of publicity are subject to a four-year statute of limitations under Florida's general statute for claims whose limitations period is not specifically enumerated in other statutes. Fla. Stat. Ann. § 95.11.