Florida common law recognizes distinct causes of action for the invasion of privacy, including appropriation, intrusion, and the public disclosure of private facts. However, in addition to common law rights and remedies, Florida statutes establishes a cause of action that provides specific, additional remedies to a person when another person or business entity uses - for any commercial, trade, or advertising purpose - the name, photo, or likeness of such person without his or her consent.
Florida Statutes Section 540.08(1) entitled "Unauthorized publication of name or likeness" provides:
No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by:
- Such person; or
- Any other person, firm or corporation authorized in writing by such person to license the commercial use of her or his name or likeness; or
- If such person is deceased, any person, firm or corporation authorized in writing to license the commercial use of her or his name or likeness, or if no person, firm or corporation is so authorized, then by any one from among a class composed of her or his surviving spouse and surviving children.
Sections 540.08 (2) and (3) set forth the civil remedies available for a violation of the statute. The remedies include:
- an injunction to stop the unauthorized publication, printing, display or other public use;
- damages for any loss or injury sustained by reason of the unauthorized activity, including an amount which would have been a reasonable royalty;
- punitive or exemplary damages; and
- civil penalties of up to $1,000 per violation (i.e., for each commercial transaction) if a party uses the name, portrait, photograph, or other likeness of a member of the armed forces, which is defined to mean "an officer or enlisted member of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States, the Florida National Guard, and the United States Reserve Forces, including any officer or enlisted member who died as a result of injuries sustained in the line of duty."
Notably, the statute expressly authorizes causes of action for a period of 40 years from and after the death of the person whose name, photo, or other likeness was used without his or her consent.
Possible defenses to an alleged violation of Florida Statutes Section 540.08(1) may include:
- Use of the name, photo, or other likeness was "part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes.";
- Use of the name, photo, or other likeness was in connection with the resale of items where consent was given to the use in connection with the initial sale of the items; and
- Use of a photo of a person who was solely a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photo.