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Copyright and publicity rights protect different things. Copyright normally belongs to the photographer or another author of the image and controls copying, distribution, derivative works and public display. The right of publicity belongs to the identifiable person (or, in some states, the person’s estate) and addresses unauthorized commercial use of that person’s identity. An advertisement can therefore need both a copyright license and a model or likeness release. If the ad also implies that the person sponsors or approves the product, a false-endorsement claim under Section 43(a) of the Lanham Act may be added.
The short answer: an image can involve three separate clearances
When an advertisement uses a recognizable person, ask three independent questions:
- Who owns the image as a creative work? The photographer, agency, employer or another copyright owner may control reproduction, distribution, adaptations and public display.
- Whose identity is being used to sell something? The depicted person may control commercial exploitation of their name, face, voice, signature, persona or other identifying features under state publicity law.
- Could consumers think the person approved or sponsored the product? A misleading implication of affiliation or endorsement can trigger the Lanham Act even when the image itself was lawfully licensed.
These permissions do not automatically substitute for one another. A license from a photographer may authorize use of the file while saying nothing about the subject’s publicity rights. A model release may authorize the commercial use of a person’s likeness while saying nothing about the photographer’s copyright. Treat each as a separate clearance unless the document expressly covers both.
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The protected subject is the photograph, not the person’s face
Copyright protects an original photograph or other authored visual work. The Copyright Office describes the owner’s exclusive rights as reproduction, preparation of derivative works, distribution, public performance where applicable, and public display. In an ad, copying a photograph into a website, social post, billboard, email, packaging design or video can implicate those rights.
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The fact that a person appears in the photograph does not ordinarily make that person the copyright owner. The photographer is generally the author, although an agency, employer, commissioning party or assignee may own the copyright under a written agreement or a valid work-made-for-hire arrangement. Ownership must be confirmed from the actual chain of title rather than assumed from who paid for a shoot or possesses a copy of the file.
What a copyright license should specify
A written license should identify the exact image and address the media, territory, term, number of uses, audience, edits and whether sublicensing is allowed. “Online use” may not clearly cover paid social advertising, connected-TV spots, retail screens, packaging, point-of-sale displays or an international campaign. Cropping, retouching, compositing, adding text, animating a still or combining the image with a product can be a derivative use that the license must permit.
Check whether the license is exclusive or nonexclusive, transferable or nontransferable, and whether an agency or platform may store and reuse the asset. Keep the invoice, license, assignment and any restrictions with the campaign’s records. A stock or commissioned-photo license can clear copyright only if it actually grants the intended uses and the licensor owns the rights it purports to grant.
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What the right of publicity protects
The protected subject is commercial identity
The right of publicity protects a person against unauthorized commercial exploitation of their identity. Depending on the governing state, identity can include a name, photograph, likeness, voice, signature, distinctive appearance or another feature that identifies the person. The core concern is not who created the image; it is whether the person’s identity is being used to promote goods or services without the required consent.
The National Library of Medicine’s advertising guidance states: “The publicity right of the subject means that a person’s image may not be commercially exploited without consent and possibly compensation.” That principle explains why a campaign may need a model or likeness release even after the advertiser has obtained a copyright license.
Publicity law is primarily state-based
There is no single, comprehensive federal publicity statute that supplies one nationwide rule. State statutes and common law differ on the protected attributes, commercial-use test, available defenses, remedies, registration requirements and whether rights continue after death. The Copyright Office has described the uncertainty created by those differences but did not create a general federal publicity right in the report discussed here.
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For a multistate or national campaign, identify the states most connected to the use: where the person lives or lived, where the advertiser operates, where the ad is distributed and where the alleged harm occurs. A court may apply a different state’s law depending on its conflicts rules. Do not assume that a release valid in one state has identical scope everywhere.
Living people, deceased people and estates
Some states recognize publicity rights only while a person is alive; others provide a post-mortem right for a specified period or under particular conditions. The duration and who may enforce the right vary. Before using a deceased person’s image, determine whether the relevant state recognizes a post-mortem right, whether an estate or successor controls it, and whether the estate has authority to grant the proposed advertising use.
How false endorsement can add a Lanham Act claim
Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), addresses uses likely to confuse consumers about affiliation, sponsorship, approval or association. An advertisement does not need to state “endorsed by” expressly. The person’s fame, the prominence of the image, surrounding copy, product category and the overall impression can make an implied endorsement plausible.
For example, a licensed photograph of a well-known athlete placed beside a product slogan may lead consumers to believe the athlete selected, uses or approves the product. A disclaimer may help in some circumstances, but it cannot be assumed to cure a prominent or misleading visual impression. Trademark, advertising and publicity analysis should therefore be coordinated rather than handled as separate checkboxes.
A two-column test for every proposed ad
| Copyright question | Publicity and endorsement questions |
|---|---|
| Who created the photograph or artwork? | Who is identifiable, and which features identify that person? |
| Who currently owns the copyright? | Is the person living, or does an estate or successor control post-mortem rights? |
| Does the campaign copy, display, distribute, edit or animate the work? | Is the identity used to advertise, promote or sell goods or services? |
| Does the license cover the media, territory, term, edits and audience? | Does a release authorize this product category, media, territory, term and reuse? |
| Are third-party elements in the image separately protected? | Could the layout or wording imply sponsorship, approval, affiliation or a paid endorsement? |
Run both columns even when one answer seems obvious. A “yes” in the copyright column does not answer the publicity column, and a signed model release does not prove that the signer owned the photograph.
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Do you need a model release if you have a photo license?
Usually, you need to examine both documents. A photographer’s license commonly grants permission to use the photograph as a work; it may not grant the subject’s permission to use their identity in advertising. The photographer may have obtained a release, but the advertiser should verify its existence and scope rather than rely on an assumption or a stock-site label.
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What to verify in an existing release
- Identity and authority: The signer should be the depicted person or someone legally authorized to sign for them.
- Commercial purpose: The text should permit advertising, promotion or endorsement-related use, not merely editorial or portfolio display.
- Media and formats: Confirm coverage for websites, paid social, print, outdoor, video, streaming, packaging, retail displays and other intended channels.
- Territory and term: Check countries or regions, start and end dates, perpetual language and any takedown or renewal terms.
- Edits and combinations: Look for permission to crop, retouch, composite, add copy, animate or place the image beside a product or claim.
- Compensation and exclusivity: Confirm payment, residuals, category exclusivity, conflicts and any restrictions on artificial intelligence, voice or other derivative uses.
- Post-mortem and assignment language: If relevant, check whether successors may enforce the right and whether the release can be assigned to an advertiser or agency.
If the release is silent or ambiguous on a material use, obtain a clarification or new release before launch. Do not treat silence as a nationwide permission.
Can you use a celebrity’s picture in an ad?
A celebrity’s photograph is not automatically free for advertising. The advertiser must clear the copyright in the particular image, the celebrity’s publicity rights under the applicable state law and any false-endorsement risk. Publicly available, historical or press photographs still have copyright owners and can still identify a person whose commercial identity is being exploited.
Using a celebrity’s name, look-alike, distinctive pose, voice or other recognizable attributes can create similar issues even when no literal photograph is copied. A “tribute,” parody or fictionalized depiction may change the analysis, but calling an ad parody does not itself create an exemption. The campaign’s commercial purpose and the overall consumer impression remain important.
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Advertising and endorsement uses generally present greater publicity risk because the identity is tied to selling or promoting a product. News reporting, commentary, criticism, documentary work, artistic expression and parody may receive statutory or constitutional protection in some jurisdictions. Those defenses are fact-specific and are not uniform across states.
Ask whether the person’s identity is the subject of the expression or is being used mainly as a promotional hook. A news article about a public event can involve a different legal analysis from an ad that places the same image beside a product claim. An advertiser should not assume that an editorial license, a public-event setting or a public figure’s status eliminates the need for consent in a commercial campaign.
A practical clearance workflow for a campaign
- Inventory every asset. List photographs, video frames, illustrations, likenesses, names, voices, signatures, usernames and look-alike elements. Record where each asset came from.
- Confirm copyright ownership. Obtain the photographer’s or copyright owner’s written license or assignment. Check whether an agency, employer or other party owns the work and whether the intended edits and channels are covered.
- Identify every person. Determine whether each person is recognizable and whether recognition comes from the face, body, voice, clothing, setting, name or context.
- Locate releases. Collect model, likeness, talent, voice and estate releases. Match each signer to the asset and verify authority.
- Map the governing law. Note the person’s residence or former residence, the campaign’s distribution, the advertiser’s operations and any state-specific choice-of-law clause. Obtain jurisdiction-specific advice for significant campaigns.
- Read the scope, not just the heading. Compare the release’s product category, media, territory, term, edits, sublicensing, assignment and compensation language with the actual plan.
- Review endorsement impressions. Have legal and marketing reviewers assess whether a reasonable consumer could infer sponsorship, approval, affiliation or a paid relationship.
- Document approvals and restrictions. Keep the final creative, contracts, invoices, takedown instructions and expiration dates in one rights file. Block reuse after a license or release expires.
- Re-clear material changes. A new product category, country, platform, slogan, crop, animation or placement can exceed the original permission.
Common mistakes and how to correct them
“I paid for the photo, so I own everything.”
Payment does not by itself establish copyright ownership or publicity consent. Correct the record by obtaining a written assignment or license and a separate subject release, each matched to the campaign.
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“The photographer said the model was cleared.”
That statement may be incomplete, undocumented or limited to editorial use. Ask for the actual release and verify the permitted commercial uses, territory, term and media.
“The person is in a public place, so the ad is lawful.”
Being visible in public does not automatically authorize commercial exploitation of identity. A public-place photograph can still require a publicity analysis and a copyright license.
“A disclaimer removes endorsement risk.”
A disclaimer may not overcome the dominant impression created by a prominent face, slogan or product placement. Test the entire ad as consumers will see it and revise the concept or obtain explicit endorsement permission where needed.
“The image is old, so no rights remain.”
Age alone does not answer copyright ownership or post-mortem publicity questions. Determine the work’s copyright status, the current owner and the applicable state’s rules for the person’s identity.
“A release is a permanent, worldwide pass.”
Some releases are limited by product, geography, duration, media, edits or assignment. Read the operative clauses and calendar expiration, renewal and takedown obligations.
How the issues interact in realistic examples
Licensed portrait used for a skincare ad
An advertiser licenses a portrait from the photographer for its website and paid social campaign. The subject is recognizable, and the copy says the product “works for professionals.” The copyright license may authorize display of the portrait, but the advertiser still needs to confirm a model release covering advertising and the selected media. If the layout suggests that the person personally uses or recommends the skincare product, endorsement risk increases. A broader or more specific release, a different image or non-endorsement copy may be necessary.
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Employee photograph from a company event
A company owns or licenses the event photographer’s work and wants to place an employee’s image on a product landing page. Employment does not automatically equal publicity consent. Check the employee’s release, workplace policy and the jurisdiction’s rules before using the image to promote products outside an internal or informational context.
Historical image in a commemorative promotion
A retailer finds an archival photograph and wants to use it in a sale campaign. The image may have a separate copyright owner, and the depicted person or estate may hold publicity rights depending on the state and date of death. Editorial or historical value does not automatically permit a commercial promotion. Clear both rights or redesign the campaign around material that can be licensed.
Illustration that resembles a famous person
An illustration can raise publicity concerns even when it is not a literal photograph if consumers would reasonably identify the person. Copyright analysis then covers the illustration as an authored work, while publicity and endorsement analysis focuses on the recognizable identity and the ad’s commercial message.
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The specific remedies depend on the claim and governing jurisdiction. Possible consequences can include an injunction or takedown, monetary damages, disgorgement or other statutory remedies, contractual claims, corrective advertising costs and the expense of replacing a campaign after launch. A Lanham Act false-endorsement claim can add federal litigation exposure when consumers are likely to be confused about sponsorship or affiliation.
These outcomes are fact-dependent. The existence of a signed release, the clarity of the license, the size and duration of the campaign, the strength of the person’s identity and the evidence of consumer confusion can all affect risk. A general article cannot calculate damages or decide which state’s law governs a particular campaign.
Questions to put in the contract before production
- Who owns the original photograph, footage or illustration?
- Does the grant cover advertising and promotion, or only editorial, portfolio or internal use?
- Which products, services and categories are included?
- Which territories, languages, platforms, formats and placements are included?
- How long may the advertiser use the material, and what happens after expiration?
- May the advertiser crop, retouch, composite, animate, generate derivatives or use the asset in future campaigns?
- May an agency, affiliate, retailer, distributor or platform use the asset?
- Does the person consent to use of their name, likeness, voice, signature and biographical details?
- Does the agreement address exclusivity, competing products, compensation, approvals and takedown procedures?
- Who bears responsibility if a third party later claims copyright, publicity or endorsement rights?
When to obtain jurisdiction-specific legal advice
Consult counsel before launch when the person is famous, deceased, a minor or represented by an estate; when the campaign is national or international; when a release is missing, unsigned or ambiguous; when the image was obtained from an unknown source; when the ad uses a look-alike, voice clone or altered likeness; or when the creative implies a recommendation. Counsel can analyze the governing state, post-mortem rules, statutory or constitutional defenses, contract language and the evidence needed to support a clearance decision.
This overview addresses U.S. law at a general level. It does not select a governing state, interpret a particular release, determine damages or provide legal advice for a specific campaign.
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Decision checklist
- Photo rights: We can identify the copyright owner and have written permission for every planned use.
- Person rights: We have a release from the identifiable person or authorized estate covering commercial use in the intended scope.
- State law: We have checked the relevant state’s publicity rules, including whether rights survive death.
- Message: The ad does not create an unapproved impression of sponsorship, approval or affiliation, or we have explicit endorsement permission.
- Change control: New crops, channels, territories, products or campaign dates will trigger a fresh scope review.
- Records: Licenses, releases, assignments, invoices and expiration dates are stored with the final creative.
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