South Florida Misappropriation Lawyers Ready to Serve You

You own your name, your likeness, your portrait, and your photographs. It is illegal for another person or entity to take your identity and use it to generate a profit without your permission. This act is commonly referred to as misappropriation of name and likeness, and it is an invasion of privacy civil tort. The state of Florida has codified the right of publicity in both statutory and case format. You have a property right in your identity, and as such, no one else can intrude upon your property right without first obtaining your consent.

If someone has misappropriated your name, likeness, portrait or photograph, you may feel powerless to stop them. However, a skilled misappropriation attorney is trained in and experienced with both property law and privacy law and can assist you with trying to obtain an injunction to stop the wrongdoer, as well as compensation for injuries you have suffered. The attorneys at Kaiser Romanello have spent years litigating in Florida courts and are well-versed in Florida misappropriation law. If you are interested in learning more about what we can do for you, call Kaiser Romanello at 855-200-1000 to schedule a free case evaluation of your misappropriation claims.

Florida Right of Publicity Law

According to the Florida Statutes 540.08(1), an individual may not use another’s name or likeness for commercial use without prior consent or permission. Commercial use includes publication, print, display, public use, and advertising. Name and likeness includes the individual’s name, portrait, photograph or any other likeness. Consent can be written or oral. Florida Statute 540.08(1) turns an individual’s name and likeness into a property right. Each individual owns their own name and likeness. No other person can own that name or likeness. Therefore, if someone else wants to use your identity in some form, they must get permission from the owner – you.

If an individual uses a drawing, portrait or photograph of you for commercial purposes, it must be easily identifiable as you to be legally cognizable in a misappropriation lawsuit.

Under Florida Statute 95.11, you have only four years to bring a misappropriation claim.

Defense to Misappropriation

Misappropriation focuses merely on commercial use. Commercial use is defined as use done for the defendant’s commercial benefit by promoting a product or service. For example, screen printing Britney Spears’s face on t-shirts without permission, then selling for a profit is commercial use.

However, using an individual’s name or likeness for purposes of expression is not unlawful. Creating a painting of Elvis Presley based on a famous photograph is expression. In addition, dressing up as Marilyn Monroe and posing on Ocean Drive is also expression.

In addition, using another’s likeness is required to be exploitative and used for advertising purposes. Without these two elements, misappropriation has not occurred, though there may be copyright and trademark violations. Thus stating “Recommended by Dr. Oz as 100% effective” on a pill bottle is misappropriation because it uses Dr. Oz’s name to market the pills.

In addition, newspapers, books, magazines, broadcast reports, and other forms of media serve the public interest and may use an individual’s name or likeness as part of the report, so long as the use is not for purposes of advertising or marketing the report.

Finally, consent is a commonly cited defense. If an individual agrees to include their name or likeness with the initial distribution of an artistic endeavor such as a movie, this consent carries over to all subsequent distributions and resale.

Damages

Unlike many other civil torts, plaintiffs do not suffer physical injuries due to misappropriation. However, they may suffer economic injuries. Common law and statutory law in Florida on misappropriation vary in terms of damages. Common law misappropriation case law states that plaintiffs only have a right to nominal damages. However, common law also does not require the plaintiff to prove any harm. The Florida Right of Publicity statute allows injunctions, economic loss or injury damages, reasonable royalties, punitive damages, and prejudgment interest. Plaintiffs can bring claims under both common and statutory law.

Economic damages are calculated by how the misappropriation financially affected the plaintiff’s business. For instance, if Britney Spears does not sell any of her own t-shirts because the other company is selling the same t-shirts for much lower, Britney Spears can recover for the lost profits. In addition, Britney Spears can seek royalty fees for the defendant’s use of her face on the t-shirts. Royalty fees are estimated based on how much Britney Spears would have charged the defendant for a licensing agreement.

Florida Misappropriation Lawyers Can Help You Seek Justice for Unauthorized Use of Your Name or Likeness

Don’t allow someone else to steal your identity and profit off of it. Because you own your identity, you have the power to do with it as you choose, including arranging for licensing agreements. Without your permission, another entity is unable to use your name or likeness for commercial reasons. If you have fallen victim to misappropriation, call Kaiser Romanello today at 855-200-1000 to discuss your legal options.

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