Published on February 24th, 2011 by Alan L Sklover
Question: Hello, Alan. I am a well decorated chef, with a pretty good reputation. I was working for a caterer who has a video of me on her website. We produced it and staged it. It’s a huge selling tool.
The relation soured. In an ugly ending – after pay cuts and pressure from a top-heavy management team – I ultimately walked out. My healthcare was cancelled without notice, and several thousand dollars were never paid to me. However, my video is still on their website, and their main selling tool.
After writing at least ten emails demanding that my video be taken off their website, I was finally assured that my video would be taken down. It has not. My current employer also uses a similar tool on their website and is pretty upset that my former employer has not taken down the other.
I live in New York State. Is there anything I can do? Thank you.
Valley Cottage, New York
Answer: Hello, Michael: You are probably in luck.
a. At least 28 states – including New York State – have a legal “right of publicity.” What are called “publicity rights” or “rights of publicity” are now recognized in at least 28 states. The two states with perhaps the strongest “right of publicity” laws are California and New York. Generally, these laws give people rights to sue others who have (a) used their names or pictures, (b) for business purposes, (c) without consent, and (d) which has caused them damages. This is a growing body of law reflecting the growing concern that people have a right to control their own privacy and, conversely, publicity.
b. New York’s “Right of Publicity” law is quite strong . . . unless you have given written consent to your video being used. New York State’s law – Sections 50 and 51 of the New York Civil Rights Law – is stronger than most: (i) first, you can sue your former employer for using your photo and name even if you cannot establish that you have yet been damaged in any way; (ii) your former employer has really only one defense: you gave it a written consent; that is, oral, implied or other expressions of consent are not good enough; (iii) you can also ask a Court for a Court Order to force their compliance with your demand that they not use your video, and (iv) a jury can even award punitive (or “punishment”) damages. So, if you did not give them written consent, you’re in luck. If you did give them written consent, you’re out of luck. My experience is that very few employers think about asking for such written consent, to their detriment.
c. Not only can a person sue another based on the law, violation of your “publicity rights” is even a “criminal offense.” New York’s “right of publicity” is so strong that, unlike many such laws of other states, it even makes what your former employer is doing a criminal offense, that is, a misdemeanor-level crime. Though not likely to put your former employer in jail, it does add “teeth” to the law.
d. First step: write a “cease and desist” letter, and mention you now know your legal rights. I suggest that the first thing you should do is send your former employer a letter demanding that they “Cease and Desist” further violation of your legal rights. Don’t forget to download a copy of the video first, just in case you need “proof” later on of their invasion of your privacy.
If you would like to obtain a Model Letter to halt unauthorized use of your name or photo for your adaptation and use [click here].
e. If that doesn’t work, you should consult with a local attorney, who does not need to be an employment lawyer. If that does not work – although I think it likely will – you should consult an attorney in your locale. My guess: it may take a “lawyer’s letter,” but it is unlikely to require more.
As noted above, “rights of publicity” are more and more a concern for people and, so, more and more states are giving people stronger and stronger tools with which to protect themselves. For this reason, you’re likely to be successful in standing up for yourself. And, if you do give it a try, and are successful, how about letting us know how you did?
What’s being done to you is plainly wrong. Let them know that you now know your legal rights. If they “can’t stand the heat, let them get out of the kitchen!!”
Best, Al Sklover
© 2011 Alan L. Sklover, All Rights Reserved.