Key Takeaways:

  • You generally cannot trademark your natural face, but aspects of your identity can be protected through trademark, publicity rights, and unfair competition laws.
  • Trademark protection may apply if your facial image is used consistently and distinctively in commerce, such as in logos or character branding.
  • Rights of publicity allow individuals to control commercial use of their name, image, or likeness.
  • Celebrities often rely on passing off, endorsement rights, or publicity laws to protect their facial image.
  • The U.S. Patent and Trademark Office (USPTO) has strict requirements for trademarks involving personal likenesses, including proof of distinctiveness and written consent.
  • Trademarking makeup or facial presentation is only feasible if it is a distinctive and consistent commercial symbol (e.g., stage personas).
  • International protections for faces vary widely and often depend on national right of publicity or unfair competition laws.

Many wonder, “Can I trademark my face?” Unfortunately, the immediate answer is no. Copyright is only valid for man-made creative ventures. The creative work must be a product of deliberate effort through creativity and conscious choices. Items found in nature, such as DNA and human faces, are not deliberately created by man. Instead, they are considered a natural phenomenon. Therefore, they're not subject to intellectual property rights.

Can You Copyright Your Own Face?

When you think about it, it wouldn't make much sense to copyright faces. If that were possible, every tourist with a camera would have to get permission to print their own pictures if you were in the background.

Instead, humans have personality rights. Your voice and appearance are your own, and no one can use them to promote a cause, product, or organization without your say-so. Any advertisement wanting to use your image must obtain a signed model release, and no one can create merchandised products with your likeness without your permission.

Can a Face Be Trademarked Under U.S. Law?

While you cannot trademark your natural face in its unaltered form, U.S. trademark law does allow protection of a person’s likeness when it is used in commerce and has acquired distinctiveness. The key factors are:

  • Use in commerce: Your likeness must be consistently used to identify and promote goods or services.
  • Distinctiveness: A specific portrayal of your face must be unique and recognized as a brand identifier.
  • Consent requirement: The USPTO requires written consent from a living individual whose image appears in a trademark application (per §2(c) of the Lanham Act).

For example, a stylized drawing or cartoon version of your face could be trademarked if it's associated with a product line or brand identity and has gained public recognition.

What About Celebrities?

You'll find that celebrities don't have a copyright on their faces either. However, businesses may still have to pay to use an artist's image. For example, Topshop in London purchased the rights to a photo of Rihanna from the photographer who owned the copyright. Topshop then sold clothing printed with the photograph. Rihanna sued and won based on the tort known as “passing off.”

Passing off was originally meant to stop businesses from passing off their services or goods as those of another company. One example would be if a company uses packaging too similar to another business to intentionally mislead customers into buying their product instead.

In the Rihanna case, the court decided in her favor because she had already extensively used her likeness for commercial purposes and built up goodwill in her image. By using her image on their clothing, Topshop was in effect misleading their customers into thinking that Rihanna had consented to the use of her likeness.

Rights of Publicity and Endorsement

Celebrities primarily rely on rights of publicity to control the commercial use of their face and identity. These rights, recognized in many U.S. states, allow individuals to:

  • Prevent unauthorized use of their name, image, or voice for commercial gain.
  • Pursue legal remedies when companies suggest a false endorsement.
  • Maintain exclusive control over the economic value of their persona.

Additionally, under the Lanham Act, celebrities can sue for false endorsement if their image is used in a misleading way that suggests association or sponsorship.

Legal Recourse

The Federal Trade Commission has strict rules about abusing facial recognition technology due to its privacy implications. While they promise to be tough on offenders, privacy advocates want stronger protections yet. One proposal sought to copyright facial features or faceprints, but that's unconstitutional.

Under the constitution, only the author of a photograph can initially obtain copyright. After England spent almost 150 years under the thumb of a copyright-like monopoly, awarding entitlements directly to the Stationer's Company, the U.S. agreed that Congress can only give copyright to the person who fixes or creates a specific work.

Also, Congress cannot allow facts to be copyrighted. We want them to be freely available to all, not tied to one person for the length of their life plus 70 years.

Copyrighting one's facial features is also a bit ridiculous. Copyright infringement would be impossible to avoid in today's technologically advanced world. And we'd be able to sue every person who accidentally captures us in their picture on their smartphone.

Statutory damages for copyright infringement range from $750 to $30,000. If the courts decide the photo is fair use, it still creates high administrative costs and invites courts to project their own normative views into the analysis of the equitable doctrine.

When Likeness Qualifies for Trademark Protection

Trademark protection may apply to a likeness under specific conditions:

  • Consistent usage: If a person’s face or stylized likeness is used regularly in branding, such as a mascot or logo.
  • Secondary meaning: The likeness must evoke the source of goods or services in the public’s mind.
  • Examples: Gene Simmons’ face paint or Colonel Sanders’ likeness serve as trademarks because they consistently represent commercial brands.

However, even when eligible, securing a trademark for your likeness can be challenging. The application must show that the image functions as a mark and does not merely describe the person.

Makeup Artists

While some may consider a beautiful makeup job a work of art, creating an individual look is not protected under IP laws unless it's stage makeup for a show like Cats. Cats held that their stage makeup was protectable under copyright law because it was a fixed work despite changing actors. Therefore, it ranked up there with their choreography as being a creative part of the show.

Creative makeup use may also be protected under trademark law. Distinctive stage makeup, like the full-face makeup Gene Simmons wears in Kiss, can be trademarked under the Lanham Act. The difference between copyright and trademark law is that a copyright protects originally authored works while a trademark protects distinctive words, pictures, and symbols used to identify services or goods in commercial business activity.

Everyday makeup is not considered a protected creative work. Even special makeup for a prom, wedding, or red carpet event is not covered. Wedding and fashion photographers may credit makeup artists in their magazine spreads or portfolios, but by law, it's unnecessary. The photographer has full rights to the finished product, and the makeup artist has no legal rights to use the photo in their own portfolio without permission.

International Trademark Treatment of Faces

Trademark and image rights protections differ globally. Some notable variations include:

  • European Union: The EU does not generally allow the registration of purely natural images unless they are stylized or function as commercial indicators. The Maartje Verhoef case highlighted the difficulty of registering a photographic likeness as a trademark due to lack of distinctiveness.
  • United Kingdom: Similar to the U.S., UK law permits image-based trademarks but emphasizes the need for distinctiveness and the likelihood of consumer recognition.
  • Civil Law Countries: Nations like France and Germany place greater emphasis on personality rights and may offer broader protection under moral rights frameworks.

For global branding strategies, individuals must often rely on a mix of national trademark laws, publicity rights, and unfair competition laws.

Frequently Asked Questions

1. Can I trademark my natural face? No, your natural face cannot be trademarked. Trademark protection only applies to faces if they are used in a stylized, consistent manner to identify a brand.

2. Can celebrities trademark their faces? Not directly, but they can protect their image through publicity rights and may trademark stylized or commercial representations of their likeness.

3. What’s the difference between copyright and trademark for faces? Copyright protects original creative works, like photographs or makeup designs. Trademark protects brand identifiers, such as a stylized face used as a logo.

4. Can I stop others from using my image without permission? Yes, you can rely on rights of publicity or privacy laws to prevent unauthorized commercial use of your image or likeness.

5. Do different countries allow trademarking a face? Laws vary widely. Some countries allow trademark protection for stylized faces, while others rely more on privacy or unfair competition laws.

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