The Right of Publicity
The right of publicity is an individual's entitlement to manage the use of her name, likeness, or identity for a commercial purpose. Like the right of privacy, the right of publicity is a property right and is governed by statutory law or common law.
Since there is no federal law regarding the right of publicity or privacy, there is no uniformity among the states and therefore, you should be familiar with the laws of the states in which your work is published or sold. However, as a practical matter since you probably will not know the laws of all fifty states, it is best to conduct yourself in accordance with the laws that are most protective of the rights of publicity and privacy. For example, even though some states permit only celebrities to assert the right to publicity, it would be prudent to assume the subject of your work has a right to publicity whether she is a celebrity or not.
In most states, only a living person can bring suit for a violation of the right to publicity. However, in a minority of states, the right to publicity survives the decedent, so to be cautious it would be wise to always contact the estate of the deceased or the heirs to obtain consent when appropriate.
Commercial Use
A person can claim their right to publicity is violated only when it has been usurped for a commercial use. Commercial uses include advertisements, promotions, and the sale of products or services. Clearly books, magazines, journals, and newspapers that are available for purchase are commercial uses and as the writer, your work also meets this criterion and therefore you could be liable for violating someone's right to publicity.
The right to publicity cannot be raised for purposes other than a commercial use because it would violate the First Amendment's freedom of speech and freedom of the press provisions. Consequently, permission need not be obtained for what is considered an “editorial” use. Examples of editorial uses are: matters of public concern, news reporting, education, political issues, and cultural events.
