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Right of Publicity: A Detour, but Sometimes Those Are Fun

This blog is not just an interstate. Sometimes, it is the scenic route. The three primary types of intellectual property law are copyright, patent, and trademark. You know this. Are there other strains of intellectual property rights? How about the right of publicity?  Jonathan Faber, an IP lawyer and professor who specializes in this right, introduces it in the following way:

The Right of Publicity can be defined as the right to control the commercial use of one’s identity. That definition raises a number of questions, of course, as well it should. What does control mean? Are there limitations on that control? Can it be used as a spear for censorship by a famous personality? What is a commercial use? Are there exceptions to commercial use? What does identity encompass?

A helicopter view of the Right of Publicity

The elements typically comprising the Right of Publicity are referred to as “name, image and likeness.” This trifecta varies from state to state. According to Indiana’s statute, the Right of Publicity refers to the property interest inherent in an individual’s “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms.” Clearly, Indiana, as but one jurisdiction, takes a more expansive view of what comprises the Right of Publicity.  The author of this article (and administrator of www.RightofPublicity.com) was responsible for passage of Indiana’s current Right of Publicity statute in 2012 which was signed into law by then-Governor Mitch Daniels, and has contributed to legislative efforts throughout the United States.

The majority view is that the Right of Publicity extends to every individual, not just those who are famous. But as a practical matter, Right of Publicity disputes usually involve celebrities, since it is they who possess the names and images that help hype advertisements and sell products.

Can you think of examples from your teaching that would bring these issues up? When would a non-celebrity choose to enforce her right of publicity? Faber next explains how this right fits with other intellectual property rights.

The Right of Publicity has little to do with copyright. Copyright applies to the bundle of rights one acquires in “original works of authorship fixed in any tangible medium of expression,” according to 17 U.S.C. Section 102 (a), so the exclusive rights held by a copyright owner apply to the work itself. This can get complicated, as Right of Publicity and copyright considerations can simultaneously be implicated in a single usage. An advertisement featuring a celebrity’s picture may require authorization from the photographer for the copyright use, and from the celebrity for the Right of Publicity use. Because these are wholly distinct claims with independent parties charged with standing to assert them, federal copyright laws generally will not preempt a state-based, Right of Publicity claim.

There are, however, some noteworthy similarities between the Right of Publicity and trademark law. Theoretically, the Right of Publicity is of the same genus as unfair competition and, more precisely, the doctrine of misappropriation–two hallmarks of trademark law, as reflected in the Lanham Act. Like a trademark, the Right of Publicity can function as a quality assurance to a consumer, especially if a celebrity, or his or her estate, maintains self-imposed quality standards and exercises discretion in licensing publicity rights. Also, proprietors of both trademark and publicity rights seek to prevent others from reaping unjust rewards by appropriation of the mark or celebrity’s fame.

Given these occasional parallels, overlap is inevitable. In Motown Record Corp. v. .Hormel & Co., for example, trademark laws were used to protect the “persona” of the legendary music group, the Supremes. 657 F. Supp. 1236 C.D. Gal. 1987. But as a general proposition, the Right of Publicity stands apart from both trademark and copyright law, as a distinct body of law, with its own underlying principles and history of precedent.

Another argument in favor of thinking about the right of publicity in the context of intellectual property is that one’s likeness is intangible, at least as compared to the watch on your wrist or the private island you own. Each state has the right to define this law, and many have chosen to do so. 

Virginia law includes a right of publicity:

§ 8.01-40. Unauthorized use of name or picture of any person; punitive damages; statute of limitations.

A. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award punitive damages.

B. No action shall be commenced under this section more than 20 years after the death of such person.

Code 1950, § 8-650; 1977, c. 617; 2015, c. 710.

Do any aspects of this statute strike you in any way? Does it seem reasonable? How would you evaluate the consequences–intended and otherwise? Does the right to publicity bump up against any other important rights?

If you’re interested in the history of the conflict between news coverage and a right to publicity, take a look at the 1977 Supreme Court case about local news coverage of a human cannonball performance. If you’ve caught the right to publicity bug, check out this lengthy article from the Spring 2001 issue of the Virginia Journal of Law and Technology. 

 

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