> If say, I was in captured accidentally in a promotional video or in a photo in a popular instagram account, I might just sue. And I’d respond with a 12(b)(6)

> If say, I was in captured accidentally in a promotional video or in a photo in a popular instagram account, I might just sue. And I’d respond with a 12(b)(6) motion for summary judgment and dismissal and demand costs. I'd also file a motion for sanctions against your attorney for filing a frivolous lawsuit. In certain states, there are rights to publicity. But these rights limit the use of someone’s name and likeness for commercial or promotional purposes of something other than the subject him/herself. For example, if I took a photo of Dua Lipa and used it to promote my potted meat, she’d have a claim against me. But if I took a photo of her and put it in a newspaper, or put it on Instagram or in my paid magazine with the caption “hey look, it’s Dua Lipa!” — even if it were on the front cover to sell the paper itself — the elements of a rights of publicity claim would not be there; or at the very least, a First Amendment question would arise. The fact that you might make money by selling a newspaper or access to a website that has photos of someone in it isn’t enough. As we say, that’s incidental.