The Common Law

The answer to this question, as usual, is more complex than simply who owns the physical photograph. Obviously, there is an issue whether you or your child own the photo. The photographer may have rights as well: If the photo was professionally made, it may be copyrighted.

What I think you are really asking, however, is whether you can sell the photo without offending the famous person's right to privacy. Every day we hear another story about a Hollywood starlet angry over a paparazzo's new and outrageous methods for obtaining (and selling) photographs. In Texas, individuals enjoy privacy rights, two particular aspects of which are involved in your question.

The first involves an individual's right to prevent others from using his or her likeness or name to gain a commercial advantage. If a famous person's likeness has been used for commercial gain, that famous person can bring a lawsuit to recover for invasion of privacy. However, these lawsuits typically deal with situations where a famous person's photograph is used as an endorsement of a product. Fortunately for you, selling a picture of your child and a famous person just to get a little money is not likely to give rise to a claim for misappropriation of identity because presumably you are not trying to use the photograph as an endorsement of a product or to sell some other commercial item simply by associating the famous person with items you are selling.

However, the second type of privacy violation occurs when a person publicly discloses private facts about another that would be offensive to a reasonable person where the private facts are of no legitimate concern to the public. So, for example, if the picture included your child and the famous person in a compromising position that a reasonable person would do only behind closed doors, then you could have a problem.