Privacy and the right of publicity

Copyright protects works. Privacy and personality rights protect people. They matter every time an image maker photographs or films a person, records their voice, uses their name, or tells a story about their life. These rights differ more between and within countries than almost any other area of media law, and they are evolving quickly, especially as digital replicas make it possible to imitate a person's face and voice convincingly.

American law protects privacy and publicity through state law: four privacy torts recognized in most states, and a right of publicity that protects against unauthorized commercial use of a person's identity, by statute in some states and by common law in others. These rights are balanced against the First Amendment, which strongly protects news, commentary and expressive works.

Two kinds of interest

It helps to separate two interests that the law protects. The first is dignity and seclusion: the interest in being left alone, in keeping private matters private and in not being portrayed falsely. The second is control over the commercial value of one's identity: the interest in deciding whether one's name, face or voice is used to sell something, and in being paid for it. Celebrities care most about the second; private individuals usually care most about the first. The law addresses both, but through different rules.

The sources of protection

The four privacy torts. Most states recognize some or all of the four torts described by the scholar William Prosser and adopted in the Restatement of Torts: intrusion upon seclusion (intruding into a private place or matter in a way highly offensive to a reasonable person), public disclosure of private facts (publicizing private information that is not of legitimate public concern), false light (portraying someone in a highly offensive false way), and appropriation of name or likeness for the defendant's benefit. Some states, such as New York, do not recognize all four.

The right of publicity. About half the states protect the right of publicity by statute, by common law, or both. New York's Civil Rights Law sections 50 and 51 prohibit using a living person's name, portrait, picture or voice for advertising or trade without written consent, and since 2021 protect deceased performers and personalities for 40 years after death. California Civil Code section 3344 protects living persons against knowing commercial use of their name, voice, signature, photograph or likeness, and section 3344.1 protects deceased personalities for 70 years. Tennessee's ELVIS Act of 2024 expressly added protection for a person's voice, including simulated voices.

Personal information laws. The United States has no general federal privacy law. Federal laws cover specific sectors, such as health and children's online data, and a growing number of states, about two dozen by 2026, have comprehensive consumer privacy laws. Most contain exemptions or limits for journalism and expression, but production companies still need to handle cast and crew personal data carefully.

Photographing people in public

Outside private premises, people generally have a reduced expectation of privacy, and taking photographs or video in public streets, parks and events is usually lawful. But taking an image and publishing it are different acts, and publication raises its own questions.

In the United States, the First Amendment protects photographing people in public and publishing those images for news, commentary and art. New York courts rejected a claim against a photographer who exhibited and sold artistic prints of a stranger photographed on a public street without consent (the Nussenzweig v diCorcia litigation, which ended in 2007), though such uses remain controversial. The main exceptions are uses for advertising or trade, which require consent under publicity laws, and images that intrude into private spaces or are highly offensive.

Public figures and newsworthiness

Public figures, such as politicians, celebrities and people involved in public controversies, have less protection against images and stories about their public roles. News, documentary, biography and commentary about them are generally protected. But public figures keep their right to control commercial uses of their identity, and their private lives, such as health or family matters unrelated to their public role, are not fair game simply because they are famous.

American courts give strong protection to speech about matters of public concern. Biographies, docudramas and fictionalized films about real people are generally protected expression; in de Havilland v FX Networks (2018), a California appeals court held that a television series portraying the actress Olivia de Havilland did not violate her right of publicity. Uses that suggest endorsement of a product, or that exploit a person's identity on merchandise, are treated differently.

Commercial use of identity

Using a person's name, image, likeness or voice to promote a product, service or cause without consent is the clearest violation of personality or publicity rights in both countries. This includes look-alikes and sound-alikes: an advertisement that uses an impersonator to suggest a celebrity's endorsement can violate the celebrity's rights even though the celebrity never appeared.

American courts have held advertisers liable for sound-alikes and look-alikes, as in Midler v Ford Motor Co (1988), where a singer imitated Bette Midler's voice in a car commercial, and White v Samsung (1992), where a robot evoked a game show host. Statutes and common law protect name, likeness, voice and, in some states, signature and other indicia of identity. Damages can include the commercial value of the use, profits and, under some statutes, statutory or punitive damages.

Children and vulnerable people

Images of children and vulnerable adults require extra care in every jurisdiction. Children cannot give binding consent, so releases are signed by a parent or guardian, and some laws give children additional protection against publication of identifying information, such as youth justice laws that prohibit identifying young offenders and victims. Filming in schools, hospitals, care homes and shelters raises institutional rules as well as legal ones. FILM-320 lesson 9 covers directing children, including employment rules for child performers.

American courts and statutes generally protect juvenile court proceedings from publicity, and many states restrict identifying juvenile offenders. Children's online privacy is protected by the federal Children's Online Privacy Protection Act, which affects apps and websites that collect data from children under 13.

Personal information in productions

Productions collect a lot of personal information: cast and crew contact details, identity documents, banking and tax information, medical information for insurance and accommodation, and footage of participants. Even where journalism or art exemptions protect the content of a film, the production company's business records are subject to personal information laws. Keep personal data secure, collect only what you need, delete what you no longer need and be careful when sharing call sheets and casting materials.

Images of people in sensitive situations

Some situations call for particular care regardless of whether a release is strictly required. People photographed at accidents, in hospitals, at funerals, in courtrooms, during police arrests or in moments of grief may later object strongly to publication, and the law, broadcasters' codes and journalistic ethics all pay attention to them.

• Courtrooms: rules on photography and recording in courts differ by jurisdiction and court; many courts prohibit cameras without permission, and publication bans can prohibit identifying parties or witnesses.
• Health information: images that reveal a person's medical condition, disability or treatment are among the most sensitive kinds of private information.
• Victims and survivors: people who have experienced violence, abuse or trauma may be identifiable through images, voices, locations or details; blurring faces may not be enough if voices, tattoos or surroundings identify them.
• Arrests and accusations: showing a person under arrest can imply guilt; careful captions and accurate reporting reduce defamation and privacy risk.

American courts generally allow publication of truthful information lawfully obtained from public records, but many states restrict cameras in courtrooms, and federal criminal courts generally prohibit broadcasting proceedings. The federal health privacy rule applies to hospitals and clinics, which will require written authorization from patients before filming them.

Anonymizing participants

When a person's identity must be protected, producers use techniques such as blurring or pixelating faces, altering voices, filming in silhouette, avoiding identifying locations and changing names. Each technique should be tested: modern tools can sometimes reverse weak blurring, and a combination of details can identify a person even if their face is hidden. Promises of anonymity are also promises that the producer must keep, including in raw footage, transcripts and promotional material, so secure storage and careful handling of unedited material matter as much as the final edit.

Consent as an ongoing conversation

Good practice treats consent as more than a signature. Participants should understand what the project is about, how they will be portrayed, where the work will appear and for how long, and whether they can change their minds before publication. Explaining these points in plain language, and checking understanding with people who are young, unwell, grieving or speaking a second language, reduces later disputes and respects the people who make documentary work possible. Some filmmakers show participants a cut of their scenes before release, without giving them approval rights, to catch factual errors and identify safety concerns, such as a location that could reveal where a person in danger lives.