(Published in the Piedmont Business Journal column “Parting Shots”, Spring 2013)

A friend of mine told me that the TV show Mad Men will air again in April and I’m looking forward to it.  Unfortunately, that is not the only news which is accompanying the Emmy winning series this Spring.   A lawsuit on behalf of a former model was filed in Los Angeles Superior Court last Friday, March 8 against the producer, Lions Gate Entertainment.   The allegation is that her portrait was used in the award winning opening credits without permission.

If the claim is true, this is a serious mistake.  In Virginia, it is actually a crime (albeit a misdemeanor) to knowingly use for advertising purposes, or for the purpose of trade, the name, portrait, or picture of any person resident in the Commonwealth, without having first obtained the written consent of such person, or if dead, his surviving spouse, or if none, his next of kin…..”  Virginia Code 18.2-216.1. (emphasis added).

The fine is between 50 and 1000 dollars but the real kicker resides in the civil statute 8.01-40 which provides for a civil cause of action for anyone so aggrieved.  This statute does not limit the cause of action to  Virginia residents and not obtaining written consent does not have to be done knowingly as in the criminal statute.  However, if the “name, portrait or picture” is used knowingly and without consent, a jury may award exemplary damages.  This is a punishment handed down by a jury and there is no statutory limit.  In my mind I question on how many occasions would a name, portrait or picture in an advertisement not be used “knowingly”.  Notice also the use of the wide open phrase “for the purpose of trade”.

A simple consent form is all that is needed.  It may be a bit of a hassle but don’t be one of those  people who say, “Aw, what are the chances?”  That attitude should have no part in running a business.  Be safe.  Reach out and obtain permission.  It protects the bottom line and it helps build good will.   Also, don’t be a Roger Sterling.  Be kind to people and don’t drink and drive.