Privacy comes in four basic forms.
- Intrusion is a physical entry into a private area -- rummaging through a woman's purse, peeping through the slit in curtains to see what's going on inside. The invasion of privacy is the act independent of any publication.
- Publication of private or embarrassing facts may give rise to a suit.
- Placing a person in a false light is another form. It is much like libel, but the person is claiming injury to self esteem, not reputation.
- Misappropriation -- the use of a person's name or likeness without permission for commercial gain.
The last one, misappropriation, is obviously relevant to advertising. Private facts, false light mainly arise in the context of news coverage, but may become a problem for PR people. Misappropriation may become an issue for PR people as well.
To avoid misappropriation problems, if you are going to use a person's name or picture (even a drawing that is recognizeable as the person) in an ad touting a product or service get that person to sign a release. This is true of models and especially true when using candids. For example, if you're promoting a product like Play-Doh and you go to a school to shoot, make sure the parents of all kids whose faces are visible signed releases. Remember, children, people with mental impairments and some others may lack capacity to give informed consent so you must get permission fromtheir guardians.
As Ford Motor Co. learned, a celebrity's voice is also subject to misappropriation claims. When it used a Bette Midler sound-alike in an ad singing a song Midler took to the top of the charts, she sued and won.