I’ve just bought the book, but if this is too much obvious, I’ll ask my money back from T&H. Serious.
The problem is the word “commercial.” Most people who use the word “commercial” in association with likeness use mean “endorsement or association,” so when I say, “you shouldn’t assume non-commercial use is always free and clear,” I was addressing that common understanding of the word.
That’s not what it means in association with the IRPA or other similar laws in other states, so when the court (quite rightly) finds that the case at bar was a “non-commercial use” and therefore not subject to the statute – and if it were, the statute would be void for violation of the First Amendment as you and the court point out – it doesn’t mean what people who use the older and more limited definition think it means.
Bottom line, if there’s money involved, at all, anywhere, it is best to step lightly around use of other people’s likenesses without permission, especially if the likeness is not incidental to the usage in some larger context.]]>