Image, name and likeness: controlling how you are used.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

Your image, your name and your likeness are worth something. A brand that puts your face on a poster, a venue that uses your name to sell tickets to a show you are not in, or an app that uses a photograph of you to spruik a product, are all trading on something you built. The question performers ask is simple: can I stop it, and can I be paid for it. The answer in Australia is less direct than many expect.

This note sets out how the law protects image, name and likeness in Australia, piece by piece, and where the strongest protection actually comes from. It is general information about how the system works, not advice on any particular use.

Is there an image right or personality right in Australia?

No. Unlike the United States, which recognises a right of publicity, Australia has no standalone right in your image, your name or your likeness. You do not own your face as a form of property, and there is no single statute you can point to and say that your image has been taken. What you have instead is a set of separate causes of action, each with its own requirements, that together give a measure of control. The practical skill is knowing which one fits the use in front of you.

Passing off and false endorsement

The common law tort of passing off is the oldest tool. It stops a trader from representing, falsely, that their goods or services are connected with or endorsed by you. The classic case is Henderson v Radio Corporation Pty Ltd (1960) 60 SR (NSW) 576, where a dancing couple succeeded against a record company that used their photograph on an album cover, because it suggested a connection that did not exist. In Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553, the maker of the Crocodile Dundee films stopped a shoe advertisement that parodied a well known scene, because the public would think the actor had endorsed the product.

To make out passing off you generally need three things: a reputation or goodwill attached to your name or image, a misrepresentation to the public that you are associated with or endorse the product, and damage or the likelihood of damage to your reputation or commercial interests. It protects the commercial value of your fame. It does not help with a use that carries no suggestion of endorsement, and it does little for a performer who has not yet built a public reputation.

The Australian Consumer Law

The statutory counterpart to passing off is the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). Section 18 prohibits conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive. Section 29 prohibits false or misleading representations, including a representation that goods or services have a sponsorship or approval they do not have, or that a person has a sponsorship, approval or affiliation they do not have.

False endorsement claims are usually run under both passing off and the Australian Consumer Law together. The advantage of the statute is that you do not have to prove the older elements of the tort in the same way, and the conduct only has to be likely to mislead. The Australian Competition and Consumer Commission can act on misleading conduct, and an affected person can bring their own action for an injunction and for damages. The use has to be in trade or commerce, so a purely private or editorial use will often fall outside it.

Who owns a photograph of you?

Many performers assume that a photograph of them is theirs. It is not. Under section 35(2) of the Copyright Act 1968 (Cth), the first owner of copyright in a photograph is the person who took it, the photographer, not the subject. Being in the picture gives you no copyright at all. If a photographer takes your picture at a show, the photographer owns the image, and in the ordinary case can license it.

There is a narrow exception. Where a photograph is commissioned for a private or domestic purpose, such as a wedding or family portrait, section 35(7) gives the copyright to the person who commissioned it. Even then, under section 35(5) the photographer can restrain the use of the photograph for a purpose different from the one it was commissioned for. None of this gives the subject of an ordinary publicity or press photograph any ownership. For a performer, the lesson is that control over images has to be built into the arrangement with the photographer at the time, not assumed afterwards.

Registering your name as a trade mark

A performer who trades under a name or a stage name can register it as a trade mark under the Trade Marks Act 1995 (Cth). A registered trade mark gives a positive right to stop others using the same or a deceptively similar mark on the goods or services it is registered for. For a musician this might cover recordings, live performances and merchandise. A band name, a logo and a distinctive stage name are all capable of registration. Registration is the one tool on this list that gives you something you own and can enforce without first proving reputation and misrepresentation each time.

Defamation

If the use of your image or name carries a defamatory meaning, defamation may apply. An advertisement that falsely suggests you endorse a product you would never be associated with, or that places you in a false and discreditable light, can be defamatory as well as misleading. Defamation now requires proof of serious harm to reputation before it will succeed, so it is not a remedy for every unwanted use, but it remains relevant where the use damages how you are seen. This sits alongside the firm's note on defamation and the performing arts.

The new statutory tort for serious invasions of privacy

Australia now has a statutory tort for serious invasions of privacy, introduced by the Privacy and Other Legislation Amendment Act 2024 (Cth) and in force from 10 June 2025. It covers two kinds of invasion: intruding on a person's seclusion, such as covert filming, and misusing information about a person, which can include private images. A plaintiff must show a reasonable expectation of privacy in the circumstances, that the invasion was intentional or reckless, that it was serious, and that the public interest in their privacy outweighs any competing public interest such as freedom of expression. Proof of actual damage is not required.

The tort is new and largely untested, so its edges will be worked out by the courts over the coming years. For a performer it may matter most where a private moment is filmed or a private image is circulated, rather than for ordinary commercial use of a public image, which the older causes of action handle better. It is one more piece of the patchwork, not a general right in your image.

Contracts and releases: where the real control sits

The strongest protection is not a cause of action at all. It is the contract you sign. When you perform, model or appear, you are usually asked to grant rights to your image, often through a release or an image and publicity clause in the engagement contract. That clause decides how your image can be used, in what media, in which territories, and for how long. A broad clause can let a producer use your image in any media, anywhere, forever. A tight clause can limit the use to the production you were engaged for, for a set period.

Read these clauses before you sign, and negotiate them where you can. The questions that matter are the purpose of the use, the media it covers, whether it extends to advertising and merchandise, the territory, the term, and whether your moral rights of attribution are respected. A performer who controls the grant at the contract stage rarely needs to rely on passing off or the Australian Consumer Law later, because the use was defined from the start.

What to do if your image is used without permission

Start by gathering the evidence: where the image appears, when it went up, and how it is being used, with screenshots and dates. Then work out which cause of action fits. A commercial use that suggests endorsement points to passing off and the Australian Consumer Law. An unlicensed copy of a photograph points to the copyright owner, which may be the photographer rather than you. A damaging or false suggestion points to defamation. A covertly taken private image may now point to the privacy tort. A short letter setting out the right and asking for the use to stop will often resolve it. Where it does not, or where money is owed for the use, advice on the specific facts is the next step.

Frequently asked.

Does Australia recognise an image right or right of publicity?

No. Australia has no standalone image, name or likeness right, and no right of publicity of the kind recognised in the United States. Control over how your image is used comes from a combination of passing off, the Australian Consumer Law, copyright, trade mark registration, defamation, the new statutory privacy tort, and the contracts you sign.

Can I stop a business using my photo to sell a product?

Often, yes. If the use suggests you endorse or are associated with the product when you do not, it can be passing off, and it can breach sections 18 and 29 of the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). You may be able to seek an injunction and damages. The use generally has to be in trade or commerce.

Do I own a photograph taken of me?

No. Under section 35(2) of the Copyright Act 1968 (Cth), the photographer who takes the picture is the first owner of copyright, not the subject. Being in the photo gives you no copyright. A narrow exception applies to photographs commissioned for private or domestic purposes, where the person who commissioned the photo owns the copyright.

Can I register my stage name as a trade mark?

Yes. A performer or band can register a name, stage name or logo as a trade mark under the Trade Marks Act 1995 (Cth) for the goods or services they trade in, such as recordings, live performances and merchandise. A registered mark gives a positive right to stop others using the same or a deceptively similar mark on those goods or services.

Does the new privacy law protect my image?

It can, in some situations. The statutory tort for serious invasions of privacy, introduced by the Privacy and Other Legislation Amendment Act 2024 (Cth) and in force from 10 June 2025, covers intrusion on seclusion, such as covert filming, and misuse of information including private images. The invasion must be serious, intentional or reckless, and against a reasonable expectation of privacy. It is new and largely untested, and is better suited to private material than to ordinary use of a public image.

What is the best way to control how my image is used?

Control it in the contract. The release or image clause in an engagement contract decides the purpose, media, territory and term of any use of your image. Reading and negotiating that clause before you sign is the most reliable protection, because it defines the use from the start rather than leaving you to rely on a cause of action after the fact.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 4 October 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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