USA – FLORIDA Law and Practice Contributed by: Diego R. Figueroa Rodríguez, DLA Piper
refuses necessary steps but will not reclaim the item. • When such actions occur, museums have a lien for costs incurred. As long as the museum reason - ably believed action was necessary to safeguard property or prevent harm and acted with care, it is not liable for any resulting loss or injury. • FACA requires lenders and their successors to inform museums in writing of any changes in address or ownership; failure to do so can result in forfeiture of the right to the property. • Finally, FACA allows museums and lenders to agree in writing to alternative terms for their loans. 8. Photography 8.1 When Are Photographs Protected as Art? Under the Copyright Act, photographs are classified as “works of visual art” and receive automatic protec - tion, provided they are original and fixed in a tangible medium. To satisfy the requirement of originality, the work must be independently created and demonstrate at least a minimal degree of creativity. Copyright in Florida is governed by federal law. For more information, see 2. Rights to Artworks. For more in-depth information on the Copyright Act, VARA and other federal laws, please refer to the USA Practice Guide. 8.2 Legal Protection for Different Types of Photographs While the Copyright Act provides protection, Florida laws may also govern how photographs are used depending on their subject and context. Right of Publicity (Likeness and Property) and Privacy Laws Florida Statute 540.08 forbids using someone’s name, image, photo or likeness for commercial purposes without permission. This law covers all people, not just celebrities and remains in effect for 40 years after a person’s death. If violated, individuals can seek injunctions to halt unauthorised use and recover financial damages, including “reasonable royalties” and punitive damages. Military members may also be entitled to fines.
Florida Statute 540.09 prohibits the commercial use of images or drawings of paid attractions, such as theme parks or museums, without the owner’s con - sent. This includes selling or promoting products with those images. Damages and injunctions are possible remedies. However, this statute does not apply to incidental, non-commercial, or news-related images. The law helps protect private tourist venues from unapproved commercial exploitation. Owners can seek monetary compensation and injunctive relief for unauthorised use. These statutes do not cover: • news media – genuine news articles and broad - casts in newspapers, magazines, books or televi - sion, as long as they are not advertisements; and • incidental use – pictures in which the attraction is only a minor part of the main subject and unlikely to be seen as advertising. These legal protections add to existing common law privacy rights, which apply when someone has a rea - sonable expectation of privacy or against unauthor - ised use of images of their property. 9. Artworks and New Technologies 9.1 NFTs In 2025, Florida enacted Article 12 of the UCC (Florida Statutes 669.101-107), establishing a legal frame - work for digital assets, including non-fungible tokens (NFTs). “NFTs” are defined as unique, blockchain- based digital assets that represent ownership of digi - tal or physical items, such as artworks and are legally classified as “controllable electronic records.” Rec - ognised as personal property, NFTs can be subject to liens secured by creditors and may be included in or transferred through estate planning documents, among other uses. At the federal level, NFTs are not currently governed by a single, comprehensive regulation; instead, they are treated as digital assets subject to existing laws such as securities, commodities or property. Please see the USA Practice Guide for more information.
240 CHAMBERS.COM
Powered by FlippingBook