Right of publicity

Right of publicity is a state law specific right. Some states such as California, and Illinois explicitly recognize the right in the form of a statute. However, states such as New York, treat this right part of right of privacy statute. Some other states do not explicitly state anything in their statutes. Courts interpreting the right of publicity cases in states where the statute is silent follow Restatement third (3rd) of unfair competition definition. All of the below content is informational purposes only. Please contact us by email or phone to setup an appointment to discuss further about your right of publicity issues.

Restatement third (3rd) of unfair competition §46 : “One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability….”

“The name, likeness, and other indicia of a person’s identity are used ‘for purposes of trade‘ [above]… if they are used in advertising the user’s goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user.” §47 of the Restatement third (3rd) of unfair competition.

Exception: “…However, use ‘for purposes of trade’ does not ordinarily include the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.” §47 of the Restatement third (3rd) of unfair competition.

Recognition of right of publicity for living individuals: Some states recognize right of publicity for all living individuals irrespective of their celebrity status. Other states recognize right of publicity only for celebrities. Few others limit right to individuals who can demonstrate commercial value.

Postmortem right of publicity: The right of publicity extends past death. The duration of right of publicity after death ranges from 10 to 100 years or even further depending on a particular state statute. The ability to maintain the right of publicity in some states depend on management, and enforcement of that right. There is no postmortem right of publicity in New York. However, an effort is being made by the legislature in New York to change that statute.

Descendibility & Assignable: Right of publicity is descendible to family members or others by Will or intestate statute of the state estate law. It is also freely assignable to anyone including corporations. However, corporations cannot by themselves create right of publicity, however they can hold it, if they are assigned the right.

What is identity?

The term “identity” in the context of right of publicity may include name, voice, image, likeness (including look alike person), signature etc.

First Amendment Exemption

Right of publicity cannot restrict the first amendment right to free speech. That would violate the constitution. Some states expressly provided exceptions in their statutes for some of the following areas:

1. Sports broadcasting.

2. Newsworthy reporting.

3. Political campaigns etc.

Some judicially created exemptions include the following:

1. Artistic expression.

2. Parody.

3. Incidental use.

4. Media advertising exemption etc.


Trademark & Copyright law preemption as a defense?

Trademark v. Right of publicity comparison: Generally, person’s image or likeness cannot function as a trademark, unless one particular image is consistently used in sales and advertising to identify those goods or services such that the image or likeness functions as a mark. “Convergence of the right of publicity and trademarks occur, as the exception, when a
person’s identity is equivalent to a source identifier.” Miller v. Glenn Miller Prods., Inc., 318 F. Supp. 2d 923, 938-39 (C.D. Cal. 2004). Trademark law protects the source identifying characteristics of marks, while the right of publicity protects the
commercial value of one’s human identity.

In order for federal trademark preemption to occur over right of publicity, the subject matter protection must be same under trademark and right of publicity and then rights asserted must be equivalent. Trademarks and right of publicity do not provide the same equivalent rights under the law.

Section 43 (a) of Lanham act v. right of publicity: Lanham act applies to trademarks, prohibits “false designation of origin” and “false advertising.” This also can be extended to allow celebrities to assert claims for the unauthorized use of their names or likenesses on the basis that “they possess an economic interest in their identities akin to that of a traditional trademark holder.” Parks v. LaFace Records, 329 F.3d 437, 445 (6th Cir. 2003). However, the focus of Lanham act is avoiding “consumer confusion,” whereas right of publicity provides protection to likeness or one’s name irrespective of the “consumer confusion.” Thus, these two are not providing equivalent adjudication of rights for preemption purposes.

Copyright preemption?: It is possible that a person may claim right of publicity in a song or sound recording which is also eligible and subject matter of copyrights. However, the similarities and subject matter commonality end there.  “The subject matter…  statutory and common law right of publicity claims is their names and likenesses. A person’s name or likeness is not a work of authorship within the meaning of 17 U.S.C. § 102.” Downing v. Abercrombie & Fitch, 265 F.3d 994, 1004-05 (9th Cir. 2001).