The short answer is probably not. If you do, you may expose yourself to liability and damages.
If you’re using a celebrity’s name, voice, signature, photograph, video, or likeness in a commercial post, and you haven’t acquired proper permission to do so, then you’re asking for trouble.
In addition to copyright violations (including an image or video clip in your post without legal permission), most of the not-so-apparent issues we see on social media revolve around the right to publicity.
Before I dive too deep into this topic, please understand that no legal advice is being given. Consult with a lawyer in your state or region with questions or legal needs. Also see my disclaimer.
The right of publicity is the right to control the commercial exploitation of a person’s name, image, or persona. We usually see this right associated with celebrities when their image or fame is used by a third-party to directly or indirectly market or sell products or services.
For example, this week, I’m guessing it’s much easier to attract attention with a post on Instagram and TikTok if you use a picture of Johnny Depp. His trial with Amber Heard is trending, his image is popular right now, and the algorithms are probably serving Depp content to viewers.
But if you add a picture of Depp to your content creation efforts without legal permission (a license, for example), especially if your content is related to commercial purposes, the chances are that you’ll be infringing on Depp’s right of publicity. This includes a traditional Web2 post or as part of the artwork associated with your Web3 NFT drop.
At the same time, the Fair Use Doctrine often allows you to use the name, likeness, or persona of a celebrity for commentary, criticism, parody, news reporting, research, and scholarship. The only problem is that this exception often falls into the grey area of law and fact, and the outcome as to whether the doctrine applies to your use may come down to a judge or jury who’s never met you.
And here’s another thing most people don’t think about. The fair use doctrine is an affirmative defense. It’s asserted and used only after you are sued. It’s also your burden during litigation and trial to establish the facts and evidence that support this defense. This affirmative defense doesn’t keep you out of litigation. It’s a tool you can use only after you are smack dab in the middle of litigation.
In some states, the right of publicity is codified. For example, in California, Cal. Civ. Code § 3344 states in part,
“(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.”
Many grey area cases, usually around the Fair Use Doctrine, become time-consuming and expensive litigation. Often, we see the side with the best lawyers win.
In summary, we don’t want to have members of our community spend hundreds of thousands of dollars and years of their time in court arguing the fair use affirmative defense. Believe me when I tell you there are better ways to spend your time and money.
The best way to avoid these legal issues is to follow the law and use content you or your team create. If you do feel the need to use a celebrity image or video in your content, obtain a legal license or other legal rights before doing so.
