Florida

Florida offers both statutory and common law protection against use of a person’s name or likeness without consent. The statute was passed in 1967 and expressly leaves in place the common law right to privacy.

Statute 

YES.

Florida law has a statute that prohibits the unauthorized publication or other public use of a person’s name or likeness “for purposes of trade or for any commercial or advertising purpose” without consent.

Fla. Stat. § 540.08

Common Law - Right of Publicity 

UNCLEAR.

Courts have treated the misappropriation tort akin to a right of publicity.

Common Law - Right of Privacy-Appropriation Tort 

YES.

The Florida statute specifically states that it does not preempt any “remedies or rights” under the common law for the invasion of privacy.  Florida has long recognized the right to privacy, and its appropriation branch.  Some federal courts have suggested that the common law tort’s elements are identical to those under the statute.

Fla. Stat. § 540.08(7)

Cason v. Baskin, 20 So. 2d 243 (Fla. 1944)Loft v. Fuller, 408 So. 2d 619 (Fla. Ct. App. 1981)

Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir.2006)

Coton v. Televised Visual X-Ography, Inc., 740 F. Supp.2d 1299 (M.D. Fla. 2010)

Post-Mortem Right 

YES.

Florida law provides a statutory post-mortem term of 40 years.  The common law right to privacy, however, appears to terminate with death.

Fla. Stat. § 540.08

Loft v. Fuller, 408 So. 2d 619 (Fla. Ct. App. 1981)

Limits on Right 
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

NO.

Neither the common law nor statute require a claimant to have commercial value.

Fla. Stat. § 540.08

Cason v. Baskin, 20 So. 2d 243 (Fla. 1944)

Does the law protect persona?

UNCLEAR.

The statute only enumerates “name, portrait, photograph or other likeness,” but the common law may be broader and no cases seems to have addressed the question of whether other indicia of identity could form the basis of a claim.

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

MAYBE

The Florida Supreme Court has limited the statute only to uses that “directly promote a product or service,” and has concluded that a use in a motion picture is not a use for a “commercial purpose” as required under the statute.  Given several courts treatment of the statute and common law as requiring similar elements a similar requirement may exist at common law as well.

Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005)

Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 2d 1255 (S.D. Fla. 2010).

Statutory Defenses 

The statute does not apply to:

• uses in newspapers, magazines, books, and news

• uses in connection with the “resale or other distribution of literary, musical, or artistic productions or other articles of merchandise or property where such person has consented” to the initial use of the person’s name or likeness was consensual.

• photographs where the person is unnamed and solely a member of the public

Fla. Stat. § 540.08(4)

First Amendment Analysis 

The Florida Supreme Court has suggested that the right of publicity is limited by the First Amendment and has applied a narrowed construction of the statutory right to uses that directly promote a product or service.  In at least one case, promotion of noncommercial speech has been read to fall within the statute’s purview.

The Eleventh Circuit Court of Appeals in which Florida sits has had several occasions to consider the interplay between the First Amendment and the right of publicity and has emphasized that the newsworthiness defense protects First Amendment interests. 

Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005)

Gritzke v. M.R.A. Holding, LLC, 2002 WL 32107540 (N.D. Fla. 2002)

Toffoloni v. LFP Publ’g Grp., 572 F.3d 1201 (11th Cir. 2009) (in context of Georgia law)

Other Commentary 

The Florida right of publicity statute provides a civil penalty of up to $1,000 for the use of the name or likeness of a member of the armed forces, but does not provide a similar right to civilians.

Fla. Stat. § 540.08(3)

Page last updated on: September 01, 2015

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