If someone features my property in a commercial advertisement without my permission, do I have a legal claim against the person?
That’s the query an acquaintance recently posed to me. Although my acquaintance’s query concerned real property, I’ll address both real property and personal property in this blog posting.
As a short answer, the depiction of someone’s real or personal property in an advertisement will not generate a cause of action in most situations. Those few situations in which it would generate a cause of action give us an opportunity to meander among a few principles of privacy, publicity, copyright, and trademark law:
Trespass/Privacy Invasion. If someone enters your private property without your consent in order to capture an image of your property, you might have an invasion of privacy claim. However, as long as they do not trespass or use deception, people seeking photographs have wide latitude to take photos in public places. It is legally permissible to photograph private property while standing on public property. It is also legally permissible to use a device such as a zoom lens to photograph action or property within public view.
Right of Publicity. Your right of publicity is your right to commercialize or profit from your persona. The right of publicity is why no one may use the name, image, voice or other identifying characteristic of any famous person – or even non-famous person – in a commercial context without permission. Featuring your property in a commercial advertisement could trigger a right of publicity claim but only if the property is identifiable with you. While most items of property are not immediately identifiable with a specific person, some are. For example, does a single white sequined glove remind you of any particular recording artist?
Copyright. You might have a claim for copyright infringement if the featured property – a sculpture, a painting, other artistic items that can be depicted, etc. - qualifies for copyright protection and you are the copyright owner. Ownership of a copyrighted work is not the same thing as ownership of the copyright in the work.
While a few buildings and structures qualify for copyright protection, such copyright protection is more limited and does not prohibit others from producing and distributing two-dimensional reproductions (e.g., a photograph) of the building.
Trademark. A few buildings and structures - such as McDonald’s Golden Arches and the Guggenheim Museum in New York – qualify for trademark protection. Featuring such a building or featuring a brand-name product in an advertisement can generate a successful trademark infringement claim if the depiction tarnishes or draws on the goodwill associated with the building/product, or misleads people to believe that the trademark owner has endorsed or sponsored the commercial advertisement.
Again, any available trademark claim is your claim only if you are the trademark owner. If someone features your Louis Vuitton handbag in an advertisement, that is Louis Vuitton’s trademark claim and not your trademark claim.
