Protecting Your Name, Image and Likeness as an Influencer

By Paul S. Rafelson, Founder, Rafelson Law PLLC

What does the right of publicity protect?

The right of publicity protects a person’s name, image, voice and other identifying features against unauthorized commercial use. It is a matter of state law, so what is covered, who can sue, what remedies exist and whether the right lasts after death all depend on the state. The central question is usually whether the use was commercial or for advertising, and whether the person consented.

• Florida. Fla. Stat. § 540.08 bars publishing or otherwise publicly using a person’s name, portrait, photograph or other likeness for trade, commercial or advertising purposes without the person’s express written or oral consent. The person can seek an injunction and damages, including an amount that would have been a reasonable royalty and, in some cases, punitive damages. The statute has exceptions, including for bona fide news reporting, and it limits claims after a person’s death. Florida courts read “commercial purpose” narrowly. The use has to promote a product or service, not simply appear in content earning money (Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005)).
• New York. N.Y. Civil Rights Law §§ 50–51 prohibit use of a living person’s name, portrait, picture or voice for advertising or trade without written consent. New York also protects performers and personalities domiciled there at death, including against digital replicas, under N.Y. Civ. Rights Law § 50-f, which New York broadened in December 2025.
• California. Cal. Civ. Code § 3344 and the common law both address commercial use of a person’s name, voice, signature, photograph or likeness.

Other states differ, including on whether a right exists at common law, whether it is statutory and how long it lasts. The state whose law applies can depend on where the person lives and where the use occurred.

What does federal law add?

Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)(1)(A)) reaches uses that are likely to confuse consumers about a person’s sponsorship or approval of a product. A creator whose recognizable identity is used to suggest an endorsement can bring a false-endorsement claim, which requires showing the identity is recognizable and the use is likely to cause confusion. See Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (voice imitation in an advertisement). Copyright applies if the unauthorized use copies a photograph or video the creator owns; see copyright in your content.

Which claim fits which situation?

What can I do on the platforms?

Platform impersonation reports are the quickest first step, and they turn on whether the account deceives viewers. A platform’s trademark process is a separate route, and it works best with a registered mark. See trademarking your name and brand. A takedown notice under the Digital Millennium Copyright Act works only for copyright, which means it fits a photograph or video you own, not a use of your name or likeness alone. Platforms also have protections from liability for third-party content under 47 U.S.C. § 230, with an exception for intellectual property law, and courts have disagreed on whether state right-of-publicity claims count as intellectual property for that exception (compare Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), with Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021)). That affects whether a claim against a platform itself is available, but claims against the person who made the use remain.

How do I control uses I do authorize?

Most losses of control come from contracts. A brand deal that grants broad, perpetual or all-media rights to your likeness can let a brand use it long after the campaign. Many of these losses come from one or two clauses that look routine. The grant of rights, the term and the sentence about “derivative” or “digital” uses decide whether a brand keeps using your face after the money stops. We read those clauses for what they allow in two years, not for what the brand says it plans. See brand deals and talent agreements.

What should I do first if my likeness is misused?

Preserve the use before anything else: screenshots, links, dates and the account. Then stop. The next moves depend on which state’s law applies, whether anything you signed reads as consent and whether the user or the platform is the right target. A report or notice getting those wrong weakens the claim it was meant to start. We sort those questions out before anything goes out under your name. See demand letters and cease-and-desist and litigation.

How do I get started?

Contact us. Tell us what was used, where it appears and whether you ever gave permission, and we will tell you whether we can help.

Paul Rafelson is admitted in Florida and New Jersey. Katie Dariano is admitted in New York. For a matter governed by another state’s law, or in another state’s courts, we bring in local counsel or seek admission as the rules require.

Frequently asked questions

Related pages

Sources and notes

• Fla. Stat. § 540.08; N.Y. Civil Rights Law §§ 50, 51, 50-f; Cal. Civ. Code § 3344.
• 15 U.S.C. § 1125(a)(1)(A); Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992); 47 U.S.C. § 230(e)(2); Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007); Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021).