Right of Publicity

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Right of Publicity

Intellectual property (IP) rights typically protect artistic creations, inventions and brand identifiers, but there are also laws to protect a person’s identity. The Right of Publicity recognizes that branding doesn’t just apply to creative works. In an age where an individual’s likeness can hold immense commercial value, this IP right is becoming more commonplace.

Right of Publicity Definition

The Right of Publicity typically relates to protection of an individual’s likeness, name, persona and other recognizable aspects of the person. An individual or brand infringes upon this right when they utilize any of these indicia for commercial benefit without express consent from the owner.

The rules in states that recognize this right vary significantly. Many statutes say the right only applies to celebrities and public personalities since the average person’s likeness wouldn’t have significant commercial value. Some states apply the Right of Publicity to any person, but in most cases, it must be shown that the plaintiff has previously exploited their identity commercially.

There are some difficulties in establishing whether a person qualifies as a celebrity. Consider the following:

  • Timeframe: Reality television has created droves of temporary celebrities. Should these individuals be considered celebrities forever?
  • Locale: An individual famous in New York may be unheard of in California. Should their image be protected throughout the United States?
  • Posthumous protection: No one would deny that Elvis will always remain a celebrity, but are parts of his image or persona still protected after death?
  • Field expertise: Does being famous within a certain profession or field grant overarching publicity rights? A physicist might be well known in their field, for instance, but relatively obscure outside of it.

Some of these issues are becoming prevalent due to consumer trends. Due to the explosion of reality television popularity, right of publicity issues are becoming more common.

Determining value is one of the most complex areas of this intellectual property right. Each state that provides damages for violations sets its own compensatory mark. Most of the states that recognize these laws – which is only around half of the country – also allow for actual damages.

For damages to be granted, though, an appropriate aspect of an individual’s persona must have been violated. These could include the following:

  • Name
  • Pseudonym
  • Nickname
  • Voice
  • Signature
  • Photograph
  • Likeness

This is not an exhaustive list since statutes and common laws vary by state. The overall right of publicity remains focused on commercial gain from some aspect of a public figure’s persona without their consent. Due to nuances in these laws, however, not all unapproved use is considered a breach of rights.

Misappropriation of the Right of Publicity

Determining whether misappropriation of the Right of Publicity has occurred can be a complex matter. Jurisdictional problems often arise since not all states recognize this right, and First Amendment concerns frequently become central to cases. Assuming these issues are non-applicable, though, there are still factors that must be considered prior to a finding of misappropriation.

The following are some of the issues a court may review:

  • Even if someone’s name isn’t expressly used, does the content imply their identity?
  • Does the individual fall under the umbrella of celebrity or public personality?
  • Is the name, description or other protected aspect being used only for commercial purposes?
  • Does the use of a person’s identity focus on issues of legitimate public concern?
  • Is the individual still alive, and if not, did they previously exploit their own identity?
  • Was the purpose of the use to cause injury?

The issue of ‘legitimate public concern’ centers around the First Amendment. Even those who engage in paparazzi photography – a field that 44 percent of Americans don’t view as legitimate journalism – are typically protected. While they often profit from images of public personalities engaged in uneventful activities, it’s difficult to argue that even the mundane activities of a celebrity aren’t newsworthy.

Some argue that this type of situation could fall under the right to privacy or defamation statutes. There are some similarities and potential crossover issues, but these are very different areas of the law. The following descriptions of each make this apparent:

  • Right of Publicity: This is a property right over an individual’s identity. Commercial use or lost profits are required factors.
  • Right of Privacy: This involves embarrassing, false or intimate private facts being published. It focuses on resultant emotional anguish rather than commercial loss.
  • Defamation: Cases involving publicity rights typically center around truthful information. Defamation entails false information that has been published.

When a person’s publicity rights have been violated, the outcome has some commonality with trademark law. Cases are often handled in a similar manner, but the Right of Publicity is still distinct and has noticeable differences.

Similar to issues of trademark infringement, though, plaintiffs can typically get compensatory damages, injunctive relief, punitive damages, attorneys’ fees and more. Ascertaining the exact amount an individual should receive in these cases can be difficult. Courts will often consider the following:

  • Publicity rights’ fair market value.
    • Level of fame that’s been achieved.
    • Prior contracts or earnings.
    • Royalty rates established with prior licenses.
  • A comparison of an individual to another public figure of equal stature within the same field.
  • Have rights ever been licensed? If not, they may be more valuable.
  • Was there any profit made due to misappropriation?

The final damages granted regarding a misappropriation of the Right of Publicity can vary widely depending upon locale and level of fame.

Common Law Right of Publicity

Not all states have publicity rights codified in their statutes. Around half of all states that recognize such rights do so as a common law Right of Publicity. This means judicial precedent has established the rules regarding such issues. Rather than reviewing legislation to guide their decisions, judges will look towards earlier court rulings when deciding on a case.

Some states recognize publicity rights on both a statutory and common law basis. This includes California, Kentucky, Nebraska, Oklahoma, Utah and Washington. In certain instances, the requirements of a common law violation must be met in order for statutory rulings to be made. Some areas also recognize an individual’s right of publicity under a separate name.

Right of Publicity in California

Relative to many other states, the Right of Publicity in California provides a higher level of protection. This is understandable considering the increased concentration of celebrities and public figures who live in the state. Common law publicity rights in California are very broad, whereas statutory protections are more focused.  The California state statute specifically protects the following areas of an individual’s persona:

  • Name
  • Signature
  • Voice
  • Photograph
  • Likeness

The common law Right of Publicity in California provides more protections than the state’s statutes. A four-step test is considered when deciding whether an individual’s publicity rights have been violated:

  • A person’s “identity” has been used.
  • A name or likeness was appropriated to provide commercial or other advantage.
  • Consent was not granted.
  • Injury occurred due to misappropriation (this can include economic).

Courts have put more focus on the “identity” area of the law rather than the “name or likeness.” “Identity” has been interpreted broadly, and it can include imitations of a public figure’s voice or photographs of objects (e.g. racecars) that a celebrity is closely linked to. Statutory rights apply if “a knowing use” and a direct connection between such use and the resulting commercial benefit is proven.

While California courts provide protection against publicity rights violations, certain cases could be heard in federal courts. Unfair competition laws, for instance, may apply under specific circumstances. Some celebrities have also been successful in registering their names or likenesses with the United States Patent and Trademark Office (USPTO). Violations may then lead to federal trademark litigation.

Right of Publicity Cases

There have been numerous Right of Publicity cases that have gained national attention over the years. Some of these cases have established common law rights while others motivated legislatures to create statutory provisions. The following are some of the most well-known cases and their results.

Lugosi v. Universal Pictures

After the death of Bela Lugosi, Universal Pictures continued to license use of his likeness as the Dracula character. Lugosi’s heirs felt the studio was acting outside of their contract and taking liberties with publicity rights that should rightfully be theirs. The family sued in 1966, and the judge eventually ruled in their favor.

Universal Pictures appealed the decision, though, and the California Supreme Court decided that deceased celebrities had no rights over their likenesses. They further found that any existing rights did not transfer to a public figure’s heirs. Within a decade of the ruling, the California Celebrities Rights Act was passed in order to grant post-mortem publicity rights.

Shaw Family Archives Ltd. v. CMG Worldwide, Inc

 Marilyn Monroe, LLC and CMG Worldwide, Inc. sued Bradford Licensing Associates and Shaw Family Archives for using the name, image and likeness of Marilyn Monroe without prior consent. The case had implications in Indiana, New York and California.

None of the involved states recognized post-mortem Rights of Publicity at the time of Monroe’s death. Because of this, the courts found that publicity rights could not be transferred through her will. Since the right to do this didn’t exist at the time of her death, the estate was not privy to it.

Following the case, California updated their statutes to provide retroactive publicity rights. This applies to individuals who died after January 1, 1938.

Familiar Faces in Back to the Future

Crispin Glover played George McFly in the highly popular film Back to the Future. He decided not to reprise his role for the sequel, so Universal Studios utilized a face mold of Glover so a makeup artist could make the new actor resemble the original character.

Glover sued over the unauthorized use of his likeness. The judge in the case urged the parties to settle, and Universal Studios ended up paying Glover an undisclosed amount. No precedent was set in the case, but the Screen Actors Guild soon changed its rules so that members couldn’t mimic other members without prior authorization.

Fraley v Facebook, Inc.

In 2011, Facebook rolled out its Sponsored Stories feature. This created customized ads that featured its own users. Members had the feature automatically enabled and would have to opt-out to avoid their photos being used in paid ads. A lawsuit was brought forward based on non-approved use of members’ images along with Mark Zuckerberg’s own admission that it created commercial profit.

Facebook argued that users’ initial acceptance of their terms of service served as blanket protection. A settlement was eventually reached, and Facebook updated its terms while adding additional opt out mechanisms. The social media giant also had to create a settlement fund of $20 million.  While no common law provisions were created relating to the case, this was a large step towards publicity rights related to non-celebrity individuals.

Right of Publicity After Death

States differ on their stances regarding the Right of Publicity after death. Some legislatures have ended publicity rights once a person dies, but others have established that the right continues for up to 100 years following an individual’s death. In most cases, though, post-mortem rights only apply to celebrities. Ownership of these rights passes to heirs or estates.

In California, this right was established under the Celebrities Rights Act. This took place six years after the state supreme court decided that Bela Lugosi’s personality rights did not pass down to his heirs. The law established the following:

  • An individual’s name, signature, voice, photograph or likeness must have had commercial value prior to their death.
  • The violating individual must have been using these aspects in a way that made them liable for damages related to not receiving prior consent.
  • Only individuals who receive publicity rights through trust, will or heir rights can grant prior consent.
  • Many types of copyrighted works are protected from liability if use of a likeness is fictional, serves as entertainment, or is a work of literary, dramatic or musical nature.

These rights extend 70 years following a public figure’s death. Indiana and Oklahoma are the only states whose post-mortem rights continue for a longer period of time (i.e. 100 years). The recipient of these rights typically has the same legal recourse available to them as the public figure themselves.

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