USA – FLORIDA Trends and Developments Contributed by: Patricia M Flanagan, Camila Chediak, Brian J Paul and Jodi-Ann Tillman, Shutts & Bowen LLP
Shutts & Bowen 525 Okeechobee Boulevard Suite 1100 West Palm Beach FL 33401 USA Tel: +1 561 835 8500 Fax: +1 561 835 8530 Email: PFlanagan@shutts.com Web: www.shutts.com
Misappropriation of NiL versus trade mark and copyright rights Rights of publicity (ROP) Protects a person’s right to control the commercial exploitation of their identity and prevents its commer - cial appropriation by others. This protection extends to a person’s NIL and voice. The laws governing the right of publicity vary from state to state, with more than 30 states recognising this right in some form, including Florida. In Florida, claims typically proceed under statutory and common-law theories, with rem - edies oriented toward injunctive relief and damages tied to commercial misuse. In Florida, both statutory and common-law frameworks address ROP claims, focusing on injunctive relief and damages for com - mercial misuse. The state’s right of publicity statute, Fla. Stat. § 540.08, prohibits the unauthorised use of a natural person’s protected aspects for commercial or advertising purposes without express written or oral consent. However, there are exceptions: legiti - mate news reports, resale of artistic works with initial consent, public photographs where individuals are not identified, and post-mortem use after 40 years. Trade mark (the Lanham Act and state law) Trade mark protects source identifiers to help consum - ers distinguish between different sources of goods and services. Trade mark law combats consumer confusion, which, in today’s digital age, includes false endorsement scenarios common in AI and deepfake contexts. Remedies for trade mark infringement are comprehensive. Courts can issue injunctions to stop unauthorised use, award profits gained from the infringement, and grant damages to compensate for
Florida’s NIL Disputes in the AI Era: Legal Protections, Trade Mark and Copyright Challenges, and Recent Developments Introduction With the rise of AI and digital media, Florida is see - ing more disputes where someone’s name, image, or likeness (NIL), including a person’s photo, voice, or even a digital recreation, has been used without their permission. The document discusses Florida’s legal protections for personal identity, comparing them to trade mark and copyright laws, and highlights recent developments affecting these areas. Recent developments include: • certain must-know substantive and procedural limits on defamation claims against media defend - ants; • the contours of specific personal jurisdiction over foreign IP holding companies whose US-facing trade mark activities implicate Florida and the Elev - enth Circuit; and • the jurisdictional showing required to pursue online copyright claims in Florida federal courts. Together, these recent decisions demonstrate how Florida’s statutory and common-law protections, in tandem with Eleventh Circuit doctrine, shape strategy for plaintiffs and defendants confronting reputational harms, cross-border brand enforcement, and digital copyright infringement.
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