Glossary

3.5 Right of publicity

4 min read•august 15, 2024

The protects individuals' control over their identity's commercial use. It's a state-based right, varying across jurisdictions, that safeguards the economic value of a person's public persona from unauthorized exploitation.

To claim a right of publicity violation, one must prove ownership, unauthorized use, commercial purpose, and injury. Defenses include First Amendment protections, consent, and statute of limitations. This right intersects with other intellectual property laws, sometimes causing conflicts.

Right of Publicity: Definition and Basis

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  • The right of publicity is an individual's right to control the commercial use of their name, image, likeness, or other aspects of their identity
  • Considered a form of intellectual property, akin to a trademark for a person's identity, designed to protect the economic value of an individual's public persona and prevent others from exploiting it without permission
  • Stems from the notion of privacy rights and the idea that individuals should have control over how their identity is used for commercial purposes
  • Evolved from the right of privacy to a distinct, commercially-focused right

State-Based Nature and Intellectual Property

  • The right of publicity is a state-based common law or statutory right, not a federal right
  • Varies by state, as there is no federal right of publicity statute
    • Some states have specific right of publicity statutes
    • Others rely on common law principles
  • Considered a form of intellectual property, similar to how trademarks protect the goodwill associated with a brand

Scope and Duration of Publicity Rights

Scope of Protection

  • Generally covers the use of an individual's name, image, likeness, voice, signature, or other distinctive aspects of their identity for commercial purposes
    • Examples include advertising, merchandising, or endorsements
  • Mere use of a person's name or image may not be sufficient if it is not recognizable or does not have economic value
  • Non-commercial uses, such as in news reporting or artistic expression, may be protected by the First Amendment

Property Rights and Descendibility

  • Typically considered a property right, meaning it can be assigned or licensed to others
  • In some states, the right of publicity is also descendible, allowing heirs to control the use of a deceased person's identity
  • Duration of the right of publicity after an individual's death varies by state
    • Some states do not recognize a postmortem right of publicity
    • Others provide protection for a specific number of years after death or even in perpetuity

Establishing a Publicity Claim

Elements of a Claim

To establish a right of publicity claim, a plaintiff must typically prove the following elements:

  1. The plaintiff owns an enforceable right in their identity or persona
  2. The defendant used some aspect of the plaintiff's identity or persona without permission
  3. The defendant's use was for a commercial purpose
  4. The defendant's use caused injury to the commercial value of the plaintiff's identity

Proving Distinctive Identity and Commercial Value

  • The plaintiff must demonstrate that the aspect of their identity used by the defendant is distinctive and has commercial value
  • Examples of distinctive aspects of identity include unique physical characteristics, mannerisms, or catchphrases associated with the individual

Unauthorized Commercial Use and Damages

  • The defendant's use must be for a commercial purpose, such as in advertising, merchandising, or promoting products or services
  • The plaintiff must show that the defendant's unauthorized use caused actual damage to the commercial value of their identity
    • Examples of damages include lost profits or diminished market value of the plaintiff's identity or associated products

Defenses in Publicity Cases

First Amendment Defenses

First Amendment defenses are often raised in right of publicity cases, arguing that the defendant's use of the plaintiff's identity is protected speech. This may include:

  • Newsworthiness: Use of a person's identity in connection with matters of public interest or concern (news articles, documentaries)
  • Artistic expression: Use in creative works, such as films, books, or artwork, where the use is transformative and not purely commercial
  • Parody or satire: Use that humorously criticizes or comments on the plaintiff's persona (Saturday Night Live sketches, satirical articles)
  • Consent or license is a defense if the defendant can show that the plaintiff agreed to the use of their identity, either expressly or implicitly
  • Right of publicity claims must be brought within a certain time period after the unauthorized use occurs, which varies by state (statute of limitations defense)
  • Preemption by federal copyright law may apply if the aspect of the plaintiff's identity used by the defendant is part of a copyrighted work (photographs, videos)

Publicity vs Intellectual Property

  • Right of publicity claims may intersect with trademark law when a person's name, image, or likeness is used to falsely endorse or advertise products or services, creating consumer confusion
  • Copyright law may preempt right of publicity claims when the aspect of the plaintiff's identity used by the defendant is part of a copyrighted work
    • The Copyright Act's preemption provision (17 U.S.C. § 301) may bar state-based right of publicity claims in such cases

Conflict with Public Domain

  • The right of publicity may conflict with the public domain status of certain works or aspects of a person's identity
  • Once copyrights or trademarks expire, the underlying works or marks enter the public domain and can be freely used by others, potentially limiting the scope of right of publicity protection
    • Examples include famous photographs or recordings that have entered the public domain

Key Terms to Review (17)

California Civil Code § 3344: California Civil Code § 3344 is a legal statute that governs the right of publicity in California, providing individuals with the ability to control the commercial use of their name, voice, signature, photograph, or likeness. This law emphasizes the protection of an individual's identity from unauthorized exploitation, ensuring that personal attributes cannot be used for commercial gain without consent. The statute is crucial in defining how public figures and private citizens can protect their image and identity in various media forms.
Celebrity Rights: Celebrity rights refer to the legal protections that individuals have over the commercial use of their name, likeness, and persona. These rights enable celebrities to control how their identity is used in advertisements, merchandise, and other commercial ventures, ensuring that they can benefit financially from their fame and public image. This concept is closely tied to the right of publicity, which specifically addresses a celebrity's ability to prevent unauthorized use of their identity for commercial purposes.
Commercial Appropriation: Commercial appropriation refers to the unauthorized use of an individual's name, likeness, or other identifying characteristics for commercial purposes without their consent. This concept is crucial in protecting individuals' rights over their persona and preventing exploitation for profit by third parties. It's closely tied to the idea of the right of publicity, which gives individuals control over how their identity is used in commerce, ensuring that they can profit from their image and likeness.
Commercial speech: Commercial speech refers to any type of communication that promotes or advertises a product, service, or business. It is primarily intended to generate a profit and is subject to different regulations compared to non-commercial speech. While commercial speech enjoys some protection under the First Amendment, it can be regulated more strictly to prevent false or misleading information and to promote public interest.
Gordon v. City of Oakland: Gordon v. City of Oakland is a legal case that centers around the right of publicity, where the court examined the balance between an individual's right to control the commercial use of their identity and the government’s interests in public safety and access to public spaces. The case highlights important considerations about how an individual's image can be used without consent, especially in contexts involving city-sponsored events. The ruling reinforces the protection of individuals against unauthorized commercial exploitation of their persona, which is a crucial aspect of the right of publicity.
Identity theft: Identity theft is a crime where someone unlawfully obtains and uses another person's personal information, typically for financial gain or to commit fraud. This violation can lead to significant harm for the victim, affecting their financial status and personal reputation. The growing prevalence of digital technology has made it easier for perpetrators to access sensitive information, raising important legal and ethical concerns related to privacy and consent.
Informed Consent: Informed consent is a legal and ethical concept that requires individuals to be fully informed about the risks, benefits, and alternatives of a specific action or decision before agreeing to it. This concept is crucial across various contexts, as it ensures that individuals have the autonomy to make decisions about their own lives, whether it pertains to their personal information online, their likeness in media, or their privacy in news gathering. It emphasizes the need for transparency and respect for individual rights in both public and private domains.
Invasion of privacy: Invasion of privacy refers to the unauthorized intrusion into an individual's personal life, causing harm or distress. It connects closely with the legal frameworks that protect individual rights, emphasizing the balance between public interest and personal privacy in media law, particularly when it involves sensitive information or personal affairs. Understanding this concept is crucial for navigating legal challenges in various aspects of media, including respecting individual rights while pursuing newsworthy stories or protecting a person's right to control their own image and personal data.
Jane C. Ginsburg: Jane C. Ginsburg is a prominent legal scholar and professor specializing in copyright law and intellectual property. She has made significant contributions to the understanding of the right of publicity, especially in the context of how individuals can control the commercial use of their identity and image. Her work intersects with issues of privacy, personal rights, and the balance between individual rights and public interest.
Melville Nimmer: Melville Nimmer was a prominent legal scholar and a key figure in the field of intellectual property law, particularly known for his extensive writings on copyright law. He is best recognized for his influential textbooks, which have shaped the understanding and development of copyright principles in the United States. His work laid the foundation for modern interpretations of copyright protection, including discussions on fair use and the right of publicity.
Misappropriation: Misappropriation refers to the unauthorized use of someone else's name, likeness, or other identifying characteristics for commercial purposes without their consent. This legal concept is closely tied to the right of publicity, which protects individuals from having their personal identity exploited for profit without permission. Misappropriation emphasizes the importance of consent in using an individual's image or identity, reinforcing personal autonomy in commercial contexts.
New York Civil Rights Law § 51: New York Civil Rights Law § 51 is a legal provision that protects individuals from unauthorized commercial use of their name, image, or likeness. This law is significant as it establishes a right of publicity in New York, allowing individuals to control the commercial exploitation of their identity and to seek damages if their rights are violated.
Post-mortem rights: Post-mortem rights refer to the legal protections that allow individuals to control the commercial use of their identity and likeness after their death. These rights often include the right of publicity, which enables heirs or estates to benefit financially from the deceased's name, image, and persona. This concept is crucial for understanding how celebrity culture and intellectual property law interact, especially in a society that increasingly commodifies personal identities.
Right of publicity: The right of publicity is a legal concept that allows individuals to control the commercial use of their identity, including their name, image, likeness, and other personal attributes. This right is intended to protect against unauthorized exploitation and helps individuals maintain control over how they are portrayed in media and advertising. It recognizes the personal value of an individual’s identity and provides a legal avenue for individuals to seek redress if their identity is used without permission.
State-specific laws: State-specific laws are legal regulations and statutes that are enacted at the state level, differing from federal laws and reflecting the unique values, needs, and circumstances of a particular state. These laws can cover a wide range of areas, including business operations, public safety, and personal rights, and play a significant role in determining how individuals and entities interact within that state's jurisdiction.
Transformative use: Transformative use is a legal doctrine that allows for the use of copyrighted material in a way that adds new expression or meaning, making it distinct from the original work. This concept is crucial in determining whether a particular use qualifies as fair use under copyright law and also plays a significant role in the right of publicity, where the use must alter or enhance the original portrayal of an individual. Transformative use serves as a balancing mechanism between protecting creators' rights and allowing for freedom of expression and innovation.
White v. Samsung Electronics: White v. Samsung Electronics is a landmark case regarding the right of publicity, where Vanna White, a well-known television personality, sued Samsung for using a robot that resembled her likeness in a commercial without her permission. This case highlights the legal protections individuals have over their identity and likeness from commercial exploitation. The ruling emphasized the importance of protecting personal brand and image rights, which are essential aspects of publicity law.
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