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Right of Publicity: Overview | Practical Law

Right of Publicity: Overview

Practical law practice note overview 2-505-8377  (approx. 33 pages).

RIGHT OF PUBLICITY

The phrase “right of publicity” was coined by Judge Jerome Frank in Haelean Laboratories, Inc. v. Topps Chewing Gum, Inc. 202 F.2d 866 (2nd Cir. 1953). Following New York law, Judge Frank delineated the distinction between the “right of publicity” and the “right of privacy.” New York’s publicity law enabled individuals to protect themselves from unauthorized commercial appropriation of their personas. Judge Frank thereby recognized an independent common law right protecting economic interests rather than the personal, emotional interests associated with the right of privacy.

Unlike the right of privacy, which is a personal right, the right of publicity is generally regarded as a property right. While damages in privacy cases are measured by emotional distress, damages in publicity cases are measured by the commercial injury to the business value of personal identity. J. Thomas McCarthy says, “[p]rivacy rights are personal rights. Damage is to human dignity.” From The Spring 1995 Horace S. Manges Lecture, The Human Persona as Commercial Property; The Right of Publicity, March 9, 1995, Columbia University School of Law, at 134. McCarthy continues: “The right of publicity is not . . . just another kind of privacy right. It . . . is a wholly different and separate legal right.” 19 COLUM.-VLA J.L. & ARTS 129. Infringement damages are therefore determined by the fair market value of the plaintiff’s identity, the infringer’s profits, and damage to the licensing opportunities for the plaintiff’s identity. For example California’s 3344.1 states “rights recognized under this section are property rights freely transferable.” Cal. Civ. Code § 3344.1(b).

Because publicity rights are conceptually regarded as property, the right of publicity is a transferable right. For the right of privacy, it is generally accepted that the right dies with the individual; however, most jurisdictions recognize the right of publicity as a descendable and transferable property right. These critical distinctions between the right of privacy and the right of publicity allow publicity rights to be economically productive even after a celebrity dies.

Legislation of Publicity Rights

While the right of publicity originated from common law, an increasing number of states have enacted right of publicity statutes. Eleven states recognize publicity rights by way of common law; eighteen via statute. These eighteen include California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. Note also that the American Law Institute’s Third Restatement of Unfair Competition (1995) § 46 also recognizes the right of publicity as a separate legal theory. Moving from privacy to publicity has not been an easy transition, and varying interpretations by the courts of these common law and statutory rights have caused considerable confusion.

New York led the way with the 1903 enactment of New York Civil Right Law sections 50 and 51. This statute prohibits the use of the name, portrait, or picture of any living person without prior consent for “advertising purposes” or “for the purposes of trade.” In the early part of the twentieth century, when there was very little precedent for the right of publicity, New York viewed publicity rights more as a personal right than a property right. Most states following New York in adopting publicity statutes recognized the importance of extending the right of publicity to the estate of the personality, because it is in fact a property right. As such, post-mortem publicity rights are increasingly a component in right of publicity legislation.

California’s publicity rights are perhaps the preeminent models for right of publicity laws. California protects against unauthorized uses of a deceased celebrity’s persona for the purpose of advertising or selling, and for the unauthorized use of a celebrity’s persona on or in a product. California began establishing publicity rights for living personalities in 1972 through section 3344 of the Civil Code. When California enacted Section 990 in 1985, it thereby allowed the celebrity’s publicity rights to pass to a successor in interest, who can then prevent the unauthorized use of the decedent’s name and likeness for a period of fifty (50) years. In 1999, the California legislature amended Section 990 and incorporated it into 3344; hence, Section 990 became Section 3344.1. By virtue of the amendment, the post-mortem duration was extended to seventy years, consistent with the copyright term extension as effectuated by the Sonny Bono Copyright Term Extension Act in 1998. In addition to these statutory provisions, California’s common law publicity rights can also be useful in providing protection to a celebrity.

While California’s statutes are perhaps the most debated right of publicity laws due to their visibility, the distinction of having the most comprehensive right of publicity statute to date belongs to the State of Indiana. Indiana enacted its statute in 1994, which is considered by many to be the most broad and sweeping of the right of publicity statutes. Indiana’s law protects a deceased individual’s right of publicity for a period of 100 years. Ind. Code Ann. §§32-36-1 et seq. (Michie 2002). The Indiana statute is very similar to California’s Section 3344.1, and contains many similar exemptions for First Amendment purposes.

The Supreme Court of the United States has confirmed that the right of publicity for an individual resides in the associative value of his or her name, likeness or image. In Zacchini v. Scripps-Howard Broadcasting, the Court stated: “[p]etitioner’s right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in the act; the protection provided an economic incentive for him to make the investment required to produce a performance of interest to the public.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576 (1977). In language reminiscent of the policies supporting copyright and patent laws, Justice White articulated what has become the foundation of the right of publicity.

Various state courts have grappled with the parameters of the right of publicity, and these decisions have no doubt led to the shaping of each state’s statutes (of those with publicity statutes on the books). Even so, it is possible to discern a consistency in the judicial interpretation of the right of publicity. The most famous Right of Publicity cases are the “impersonator” cases of Midler, Waits, and White. Midler v. Ford Motor Co. , 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc. , 978 F.2d 1093 (9th Cir. 1992) involved similar fact patterns in that both Bette Midler and Tom Waits declined to lend their distinctive voices to advertising jingles for two prominent manufacturers. The advertisers proceeded to find performers who could duplicate the vocal styling of Bette Midler and Tom Waits. Both Midler and Waits prevailed on Right of Publicity claims which yielded $400,000 for Midler and $2,500,000 for Waits several years later. In another famous impersonator case, White v. Samsung Electronics America, Inc. , Samsung utilized a robot that looked and acted like Vanna White of “Wheel of Fortune” fame. 971 F.2d 1395 (9th Cir. 1992). Samsung dressed the robot like Vanna White and made the robot turn letters like Vanna White’s on Wheel of Fortune . White was awarded $403,000. In January of 1999, Dustin Hoffman sued a magazine publisher for infringing his Right of Publicity. Hoffman v. Capital Cities/ABC, Inc. , Los Angeles Magazine, 33 F.Supp.2d 867 (C.D. Cal. 1999). Los Angeles Magazine manipulated movie still shots to make it appear that the celebrities were wearing designer clothing. Dustin Hoffman’s Tootsie character was dressed in a Richard Tyler gown and Ralph Lauren heels· Though it was clear from the photo editorial that Hoffman personally did not endorse these designers, he nevertheless was awarded $3,270,000 for the violation of his publicity rights. It should be noted that this case was overturned on appeal, but Hoffman is reportedly appealing that decision. The case remains notable as an example of the escalating damages in infringement cases. Numerous other noteworthy Right of Publicity cases have come down over the years. Carson v. Here’s Johnny Portable Toilets , 698 F.2d 831 (6th Cir. 1983) and Motschenbacher v. R.J. Reynolds Tobacco Co. , 498 F.2d 821 (9th Cir. 1974) are significant in that neither case involved the name or image of the famous individual implicated in the case. The former of these cases involved the well-known “Here’s Johnny” introduction of Johnny Carson on the Tonight Show in an advertisement. The latter involved an advertising use of a certain race car that was identifiable as belonging to a specific driver. In each case, the companies were infringing because of the unequivocal association that the public could make between the phrase and the car, and the famous individuals associated therewith. George Wendt and John Ratzenberger, who played Norm and Cliff on the television show Cheers, also were involved in an infringement case. Wendt v. Host International Inc. , 197 F.3d 1284 (1999). In this case, a theme restaurant based around the set of Cheers used robots where Norm and Cliff always appeared in the show. The robots play clips of Norm and Cliff from the show. Ultimately, the defendants settled with the actors. omedy III Productions Inc. v. Gary Saderup, Inc. pitted the Right of Publicity against First Amendment arguments. Supreme Court of California (April 30th 2001), 2001 Cal. LEXIS 2609. Defendant is an artist who used his charcoal depiction of the Three Stooges and sold the artwork on T-shirts and lithographs. The defendant argued that his merchandise was “newsworthy” because the Three Stooges once made headlines. The judge ruled that newsworthy defense has a timeliness component beyond the scope of the case at hand. Regarding the First Amendment defenses, the court held for the plaintiff and developed a new balancing test to determine when the Right of Publicity trumps an artist’s First Amendment rights. When a celebrity is the subject of a work of art which is not an original single work of art, the celebrity’s publicity rights are outweighed by the artist’s right to commercially produce his art only when the work is “sufficiently transformative.” To put it another way, “when an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity.”

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The First Amendment and the Right(s) of Publicity

abstract . The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff’s performance, the commercial value of a plaintiff’s identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff.

Plaintiffs’ interests in their identity must always be weighed against defendants’ constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant’s misappropriation of a plaintiff’s identity can occur in public discourse, in commercial speech, or in what we call “commodities.” We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect.

The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

author. Robert C. Post is the Sterling Professor of Law at Yale Law School. Jennifer E. Rothman is the William G. Coskran Professor of Law at Loyola Law School, Loyola Marymount University, Los Angeles. For their comments on drafts of this paper, we are grateful to Shyamkrishna Balganesh, Jane Ginsburg, Wendy Gordon, Amy Kapczynski, Genevieve Lakier, Mark Lemley, J. Thomas McCarthy, Elizabeth Pollman, Lisa Ramsey, Pamela Samuelson, Frederick Schauer, Brian Soucek, Rebecca Tushnet, Eugene Volokh, James Weinstein, Christopher Yoo, and participants at the Boston University Intellectual Property Colloquium, the University of Pennsylvania’s Law & Technology Colloquium, the Pepperdine Caruso School of Law faculty workshop, the Yale Freedom of Expression Scholars Conference, the Intellectual Property Scholars Conference at DePaul University, and the Works-in-Progress Intellectual Property Conference at Santa Clara University. We also thank Alejandro Nava Cuenca, Gavin Holland, and Alex Zhang for their research assistance.

Introduction

The right of publicity is broadly defined as a state-law tort designed to prevent unauthorized uses of a person’s identity that typically involve appropriations of a person’s name, likeness, or voice. 1 Because the right of publicity restricts what can be said, shown, or heard, it potentially conflicts with freedom of speech. Judicial analysis of this conflict is notoriously incoherent and inconsistent.

The essence of the problem is that unauthorized uses of identity are regulated for many different reasons that are frequently jumbled together in vague state proscriptions enforced either through common-law torts or legislation. Cogent First Amendment analysis requires careful specification of the precise state interests that justify government restrictions of speech. It should come as no surprise then that courts have failed to articulate any single First Amendment test adequate to encompass the many distinct legal interests that the contemporary right of publicity jams together.

In most of its formulations, the right of publicity refers to a distinct tortious act , which is broadly defined as the appropriation of a plaintiff’s identity for a defendant’s “use or benefit.” 2 But a single tortious act can impair multiple distinct legal interests . Consider an example drawn from Hustler Magazine , Inc. v. Falwell : if I accuse you of having sex with your mother, I can damage the esteem in which you are held in your community, and so commit the tort of defamation. Or I can specifically intend to cause you emotional harm, and so commit the tort of intentional infliction of emotional distress. Or I can assault your dignity by revealing deeply held secrets, and so commit the tort of public disclosure of private facts. 3 Although these different torts arise out of the same act, they each possess different elements that track the specific harm the tort is designed to redress.

The underlying difficulty with the right of publicity is that it prohibits conduct without specifying the particular harm the tort seeks to address. 4 The resulting imprecision has encouraged the tort to expand uncontrollably, becoming, in the words of one commentator, like the “Wild West.” 5 Not only has litigation involving the right of publicity greatly increased, 6 but disparities in defining the right across different jurisdictions have also grown. 7 In some states, the right is confined to commercial contexts, and in others it is not. 8 In some states, plaintiffs asserting the right must establish that they have commercially valuable identities, and in others they do not. 9 In some states, the right is oriented toward economic injury, and in others it encompasses injuries that are both economic and personal. 10 Because the harms redressed by the tort are uncertain and ill-defined, so too is First Amendment treatment of the tort.

This has real and important consequences. Those who wish to create expressive works that incorporate the identities of actual people, or who wish to post images and comments about actual people online, are bereft of reliable and foreseeable protections for the exercise of essential First Amendment rights. Courts have disagreed about the circumstances under which the First Amendment protects the use of well-known persons’ identities in video games, 11 news reporting, 12 posters, 13 board and card games, 14 prints, 15 comic books, 16 merchandise, 17 and movies. 18 The tort’s jagged and unpredictable reach chills speech in extensive and immeasurable ways.

Our hope is to ameliorate these deficiencies in right of publicity law much as William Prosser did sixty years ago for the right of privacy. He looked at the “haystack in a hurricane” of privacy law and sought to make sense of it by distinguishing four distinct kinds of privacy torts. 19 In this Article, we seek to perform an analogous service for the right of publicity and, in the process, to clarify constitutional analysis of the tort.

We identify four distinct interests that the right of publicity typically seeks to vindicate. The disaggregation of these interests is an essential first step in addressing the current confusion because each of these four interests requires its own specific First Amendment analysis. As a helpful heuristic, one might even go so far as to imagine each of these interests as embodied in its own distinct tort, with its own set of prima facie elements.

For purposes of clarity, we denominate these four ideal torts as the right of performance, the right of commercial value, the right of control, and the right of dignity. These torts protect, respectively, plaintiffs’ interests in controlling the use of their performances, in preserving the commercial value of their identity, in protecting the autonomy of their personality, and in maintaining the dignity of their person. In any given right of publicity action, one or more of these four distinct interests may be at stake. 20 When taken together, we believe that these four interests encompass the vast majority of cases presently brought to remedy unauthorized uses of identity under state right of publicity laws.

In Part I, we define these four different rights of publicity. In Part II, we describe the present sorry state of First Amendment analysis with respect to right of publicity claims. In Part III, we demonstrate that the clarity of First Amendment analysis will be much improved if publicity claims are disaggregated into the four interests that we identify. Though difficult constitutional judgments will of course remain, our hope is that our proposed framework will produce more reliable, predictable, and sound constitutional outcomes than the bedlam that presently prevails. We hope also to offer a useful vantage for further critique and reform of the underlying substantive tort.

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Although initially limited to the use of a person’s name and likeness, the law now allows liability for uses of other indicia of “identity.” See, e.g. , White v. Samsung Elecs . Am., 971 F.2d 1395, 1399 (9th Cir. 1992) (holding that a right of publicity claim could lie for the use of a robot that merely brought the plaintiff to mind); Midler v. Ford Motor Co., 849 F.2d 460, 463-64 (9th Cir. 1988) (allowing a publicity claim based on the use of a vocal performance that sounded similar to the plaintiff’s voice); Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 827 (9th Cir. 1974) (allowing a publicity claim on the basis of the use of a red car associated with the plaintiff); see also Jennifer E. Rothman , The Right of Publicity: Privacy Reimagined for the Public World 88-96 (2018) (tracing the expansion of the right of publicity beyond name and likeness).

See Restatement (Second) of Torts § 652C (Am. Law Inst. 1977).

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56-57 (1988) (holding that such an accusation asserted as parody in a magazine was protected by the First Amendment from an intentional infliction of emotional distress claim; the plaintiff had also brought false light and defamation claims).

See, e.g. , Cal. Civ. Code §§ 3344, 3344.1 (West 2019); Nev. Rev. Stat. § 597.770 (2019); N.Y. Civ. Rights Law §§ 50, 51 (McKinney 2019); Eastwood v. Superior Court, 198 Cal. Rptr . 342, 349-52 (Ct. App. 1983); Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d 697, 705-06 (Ga. 1982).

Brian D. Wassom , Identity and Its Consequences: The Importance of Self-Image , Social Media , and the Right of Publicity to IP Litigators , in Litigation Strategies for Intellectual Property Cases: Leading Lawyers on Analyzing Key Decisions and Effectively Litigating IP Cases 37, 43 ( Aspatore Books ed. 2012); see Rothman , supra note 1, at 61-62, 87-97.

In 1977, 9 states had some version of a statutory right of publicity or appropriation tort. Today, that number has swelled to 25. The vast majority of states without a statutory right recognize some version of a common-law right. See Rothman’s Roadmap to the Right of Publicity , https://www.rightofpublicityroadmap.com [https://perma.cc/78DR-NBFA] (providing analysis of different state publicity laws). To get a rough perspective on the growth in decisions involving the right of publicity over the last forty years, there were approximately 18 published right of publicity decisions in the 1970s, 53 in the 1980s, 63 in the 1990s, 105 in the 2000s, and 112 in the 2010s. These numbers likely underestimate the number of opinions because they are based on our survey of published decisions on Westlaw only locating cases using the search term “right of publicity” in the synopsis/digest for the cases. The uptick in right of publicity filings has been far greater.

On state-to-state variations in the right, see Rothman, supra note 1, at 96-98; and Rothman’s Roadmap to the Right of Publicity , supra note 6.

See infra notes 23-24, 29-32 and accompanying text.

See id. As we will discuss, in most states the right of publicity addresses both market-based and personality interests.

Compare In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1284 (9th Cir. 2013) (rejecting a First Amendment defense in the context of alleged uses of athletes’ likenesses in a video game), with Noriega v. Activision/Blizzard, Inc., 42 Media L. Rep. 2740 (Cal. Sup. Ct. 2014) (holding that the First Amendment insulated a video game maker from liability for using the former dictator’s likeness in a video game).

Compare Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (rejecting a First Amendment defense in the context of a nightly news broadcast that showed plaintiff’s performance), with Joe Dickerson & Assocs., LLC v. Dittmar, 34 P.3d 995, 997 (Colo. 2001) (rejecting a right of publicity claim when the use of a person’s identity was in a newsletter, and the use was deemed “newsworthy”).

Compare Montana v. San Jose Mercury News, Inc., 40 Cal. Rptr . 2d 639, 643 (Ct. App. 1995) (concluding that a right of publicity claim in the context of a poster of a famous quarterback was barred by the First Amendment), and Paulsen v. Personality Posters, Inc., 299 N.Y.S.2d 501, 509 (Sup. Ct. 1968) (denying a right of publicity claim when the defendant sold a poster with the comedian’s likeness), with Factors, Etc., Inc. v. Pro Arts, Inc., 496 F. Supp. 1090, 1104 (S.D.N.Y. 1980) (allowing a right of publicity claim and rejecting a First Amendment defense to the use of Elvis Presley’s name and image in memorial posters), rev’d on other grounds , 652 F.2d 278 (2d Cir. 1981), and Brinkley v. Casablancas , 438 N.Y.S.2d. 1004, 1014-15 (App. Div. 1981) (allowing a right of publicity claim in the context of a poster displaying an image of the plaintiff-model).

Compare Rosemont Enters., Inc. v. Urban Sys., Inc., 340 N.Y.S.2d 144, 147 (Sup. Ct. 1973) (allowing a right of publicity claim in the context of a board game about Howard Hughes), with Aldrin v. Topps Co., No. CV-10-09939, 2011 WL 4500013, at *3 (C.D. Cal. Sept. 27, 2011) (allowing a First Amendment defense in the context of a trading-card game).

Compare Comedy III Prods., Inc. v. Gary Saderup , Inc., 21 P.3d 797, 810-11 (Cal. 2001) (rejecting a First Amendment defense in the context of a drawing of comedians sold in multiple lithographed copies and on t-shirts), with ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 936-38 (6th Cir. 2003) (allowing a First Amendment defense in the context of prints of a painting of a famous golfer sold in multiple copies).

Compare Doe v. TCI Cablevision, 110 S.W.3d 363, 376 (Mo. 2003) (rejecting a First Amendment defense to the use of a variation on a hockey player’s name in a comic book), with Winter v. DC Comics, 69 P.3d 473, 480 (Cal. 2003) (concluding that the First Amendment protects an author from liability for using a variation on plaintiffs’ names and likenesses in a comic book).

Compare Rosa & Raymond Parks Inst. for Self Dev. v. Target Corp., 90 F. Supp. 3d 1256, 1263-65 (M.D. Ala. 2015) (allowing a First Amendment defense to the use of the civil-rights hero’s name and image on a mass-produced plaque), aff’d on other grounds , 812 F.3d 824 (11th Cir. 2016), with Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., 296 S.E.2d 697, 706 (Ga. 1982) (rejecting a First Amendment defense in the context of the sale of mass-produced busts of the civil-rights leader).

Compare Porco v. Lifetime Entm’t. Servs., LLC, 47 N.Y.S.3d 769, 772 (App. Div. 2017) (allowing a right of publicity claim to proceed in the context of a docudrama), with De Havilland v. FX Networks, LLC, 230 Cal. Rptr . 3d 625, 647 (Ct. App. 2018) (rejecting a right of publicity claim on First Amendment grounds in the context of a docudrama television series).

William L. Prosser, The Right to Privacy , 48 Calif. L. Rev. 383, 407 (1960).

Unauthorized uses of a person’s identity sometimes also implicate interests that are protected by other torts. Plaintiffs may sometimes allege, for example, that the unauthorized use of their identity has placed them in a false light, defamed them, or infringed a trademark. See, e.g. , ETW Corp ., 332 F.3d at 915 (bringing trademark, unfair competition, and right of publicity claims against an artist who made prints from his painting of the plaintiff winning the Master’s Tournament); De Havilland , 230 Cal. Rptr . 3d at 625 (bringing both false light and right of publicity claims in a lawsuit arising out of a miniseries character based on the plaintiff that used her name and personality).

Right of Publicity

The leading online right of publicity resource., concise history of the right of publicity.

The Right of Publicity has been developing for a long time, but it is certainly not a new proposition. It may be known alternatively as “personality rights” or “NIL” (name, image, likeness), though popular use of NIL refers to collegiate or amateur athletes and not the name, image and likeness trifecta of the Right of Publicity overall. Quite simply, the Right of Publicity provides the right to control the commercial use of one’s identity. Yet, as soon as a definition is proffered, new questions arise: What does control mean? Are there limitations? Can it be used for censorship? What is a commercial use? Are there exceptions to commercial use? What does identity encompass? What about deep fakes or AI? What is the taxable value of the right in an estate context? These inquiries have answers. Ultimately, the Right of Publicity provides protection not adequately addressed by other doctrines and thereby establishes its necessity.

Right of Publicity legislation of one kind or another is often pending in state legislatures throughout the United States. Sometimes draft legislation seeks to enact a statute that codifies a state’s common law position on the Right of Publicity, or to confirm rights other states enacted long ago. Other times, legislation seeks to amend an existing statute. In both instances, such legislation is often concerned with bringing a state’s law up to standards with other states. Those opposing Right of Publicity legislation often predict that passage of a given bill will lead to waves of litigation and the death of the First Amendment. Such hyperbole is easily disproven by the many jurisdictions with meaningful Right of Publicity legislation in place.

Creative works, free speech, and the First Amendment can and do co-exist with the Right of Publicity, and that has long been true.  Parallel but distinct rights holders involving copyright and the Right of Publicity can and do co-exist, and this as well has long been true. The Right of Publicity is certainly not a copyright in reverse. Are there occasional issues? Of course. Is any area of law immune to occasional issues, misunderstanding, or overreach? A little effort towards understanding goes a long way.

A 30,000 foot view of the Right of Publicity

As already noted, the elements comprising the Right of Publicity often are referred to as “name, image and likeness” but this is restrictive framing of what Right of Publicity encompasses. Recent legislation referred to as “NIL” allowing amateur or college athletes the ability to be paid for commercial uses of their persona inadvertently risks overlap with the Right of Publicity overall. Time will tell if parallel legislation concerning similar rights can be kept separate. Yes, there are variations in Right of Publicity statutes from state to state, but the statutes in question are generally not too lengthy or difficult to read, and those most affected by such statutes throughout the United States navigated these differences for decades. The alleged confusion, then, often seems more like a tactic for lobbyists or critics of the Right of Publicity seeking to publish an article or book, where asserting confusion serves as currency more than insight.

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.” Indiana, as but one jurisdiction, puts more effort into defining manifestations of the Right of Publicity than most other states. The author of this article (and administrator of www.RightofPublicity.com) was responsible for passage of Indiana’s current Right of Publicity statute which was signed into law by then-Governor Mitch Daniels, and has contributed to legislative efforts throughout the United States. Indiana’s articulation of the protectable elements of persona aligns with the driving question that should be asked in Right of Publicity analysis:  is the person in question unequivocally identifiable?  If so, it should not matter if identifiability occurs by name, image, likeness, or by jersey number, or by a nickname, or by the context of how the persona is referenced.

The majority view is that the Right of Publicity extends to every individual, not just those who are famous. As a practical matter, Right of Publicity disputes usually involve celebrities and notable personalities, since they possess the visibility and personas that help hype advertisements and sell products. But not always.

The Right of Publicity as part of the intellectual property family

The Right of Publicity is often confused with its more recognized members in the intellectual property family, namely copyright and trademark; however, the origins of copyright, trademark, and the Right of Publicity demonstrate distinct policy rationales for the interests that each is designed to protect.

The Right of Publicity has little to do with copyright at its core. Copyright applies to the 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. To be sure, 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 distinct interests, often with independent parties with standing to assert them, federal copyright generally will not preempt the Right of Publicity.

There are, however, some 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 reflected in the Lanham Act. Like a trademark, the Right of Publicity can function as quality assurance to a consumer, especially if a rightsowner 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.

Notable cases addressing the Right of Publicity

The Supreme Court of the United States has reviewed the Right of Publicity only once, in the seminal case Zacchini v. Scripps-Howard Broadcasting . Zacchini involved a “human cannonball” who objected to his entire performance being televised on the local news. The value of his act depended on the public’s desire to see the event, so televising the event detracted from the demand of people willing to pay to see his act.

The Court recognized Zacchini’s Right of Publicity and rejected the Broadcasting Company’s First and Fourteenth Amendment defenses. In so doing, the Court noted that the decision was not merely to ensure compensation for the performer; rather, it was to provide “an economic incentive for him to make the investment required to produce a performance of interest to the public.” 433 U.S. 562, 576 (1977). Thus, in language reminiscent of the policies supporting copyright and patent laws, Justice White solidified the foundation of the Right of Publicity.

Among the most recognized Right of Publicity cases are the so-called “impersonator” cases. Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1989) and Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992) involved similar fact patterns in that both Bette Midler and Tom Waits declined to lend their distinctive voices to advertising jingles for two prominent manufacturers. Undeterred, the advertisers in each case simply found sound-alike performers who could duplicate the vocal timbre and styling of Bette Midler and Tom Waits. Both Midler and Waits prevailed on Right of Publicity claims which yielded $400,000 for Midler and $2,500,000 for Waits several years later.

In another impersonator case, White v. Samsung Electronics America, Inc. , Samsung utilized a robot that looked and acted like Vanna White of “Wheel of Fortune” fame. 971 F.2d 1395 (9th Cir. 1992). The use was an infringement because Samsung utilized and relied upon the image and popularity of White for the ad to work. White was readily identifiable from the context of the use. She was awarded $403,000.

Of course, many Right of Publicity cases have issued over the years. Carson v. Here’s Johnny Portable Toilets (698 F.2d 831, 6th Cir. 1983) and Motschenbacher v. R.J. Reynolds Tobacco Co. (498 F.2d 921, 9th Cir. 1974) are significant in that neither case involved the image of the individual implicated in the case. The former involved the well-known “Here’s Johnny” introduction of Johnny Carson on the “Tonight Show.” The latter involved an advertising use of a distinctive race car identifiable with a specific driver. In each case, the companies were infringing because of the unequivocal association the public could make with the individuals involved.

In January of 1999, Dustin Hoffman asserted his Right of Publicity against a magazine publisher. The use did not involve an advertisement. per se . In Hoffman v. Capital Cities/ABC, Inc., Los Angeles Magazine created a feature photo spread of a variety of celebrity images from movie still shots. 33 F.Supp. 2d 867 (C.D. Cal. 1999). The magazine manipulated the images so it appeared that the celebrities were wearing designer clothing. For example, Dustin Hoffman’s character in “Tootsie” was dressed in a Richard Tyler gown and Ralph Lauren heels· Though there was no overt suggestion that Hoffman endorsed the article or the designers, Hoffman was awarded $3,270,000. This amount consisted of $1.5 million in compensatory damages, $1.5 million in punitive damages, and $270,000 in attorney fees. The case was overturned on First Amendment grounds on appeal.

As the verdicts in these cases reveal, infringing a celebrity’s Right of Publicity can be a costly error. For this reason, the use of a celebrity’s name, image or likeness in any commercial endeavor should be carefully scrutinized to ensure compliance with applicable publicity laws (as well as possible trademark considerations since certain aspects of a celebrity’s persona also can qualify for trademark protection).

Licensed to sell

Despite the financial wealth and adulation that often (but not always) accompany fame, celebrity status carries a hefty price tag. Benedict (Baruch) Spinoza, writing more than 300 years ago, identified this trade-off: “Fame has also this great drawback, that if we pursue it we must direct our lives in such a way as to please the fancy of men, avoiding what they dislike and seeking what is pleasing to them.” (1632.1677; from Tractatus de Intelledus Emendatione).

Recognition of this dilemma underscores the policies supporting the Right of Publicity. Celebrities typically invest considerable energy in nurturing their public image, and few can argue that it would be anything but unfair for a business to siphon the celebrity’s success into their advertising or products to increase sales, without compensating the celebrity for the heightened profits, profile, or recognition of the product or company.

The idea of nurturing and marketing one’s public image is nothing new, as some of the greatest achievers in history have increased the value of their namesakes through controversy, theatrics and sensationalism. Niccolo Paganini, perhaps the greatest violinist to ever live, understood how to market an image. At his sold-out concerts throughout Europe in the 19th century, his mysterious stage persona and unparalleled virtuosity led many to conclude that he (or perhaps his attorney) had negotiated a deal with the devil. Paganini fueled the controversy by wearing black costumes, which, in addition to his gaunt countenance and long hair, created the spectral appearance of a wraith floating across the stage.

Paganini’s compositions – witness the 24 Caprices – require a technical finesse to which performers painstakingly aspire. As if to mock the difficulty of his compositions, during the finale of his concerts, Paganini intentionally increased the tension on his strings to cause them to break one by one during his performance, and he would seamlessly finish the work on a single string. The German genius Louis Spohr, after attending a Paganini performance in 1830, said that “in his compositions and performance there is a strange mixture of the highest genius, childishness and tastelessness, so that one feels alternately attracted and repelled.” Arnold Whittall, Romantic Music 45 (1987). The same could be said of many of today’s beloved personalities.

If the manipulation of one’s image in order to increase revenue streams is nothing new, the advent of publicity laws in the 20th century ensure that the profits derived from these valuable personas are more equitably channeled. Indeed, publicity laws have led to results that the achievers and celebrities of previous ages could merely wish for, as The Wall Street Journal recently explored in a special Millennium edition: “Thanks to their ability to sell tickets and raise television ratings, top stars now command contrasts and fees that make them more wealthy than the royal patrons who supported entertainers of yore.” Peter Gumber, “Fame and Fortune,” The Wall Treet Journal, Jan. 11, 1999 at R34).

The policies supporting Right of Publicity laws are not simply about ensuring that a celebrity or celebrity estate gets paid. It is also about the right to control how a celebrity is commercialized, or if he or she will be used at all. As Vince Lombardi Jr. has said: “Nothing anyone can do is going to enhance my father’s reputation, but they certainly can detract from it.” (Mark Hyman, Dead Men Don’t Screw Up Ad Campaigns, Business Week, March 10, 1997). Thus, the ability to control commercialization in the first place is as much a policy objective of the Right of Publicity as is providing revenue streams for the rightful recipient.

A right comes to life

As of this writing, half the states in the U.S. recognize the Right of Publicity in some capacity via statute (Alabama, Arizona, Arkansas, California, Florida, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin).  According to the ABA’s Right of Publicity:  Analysis, Valuation and the Law, thirty-eight states have some form of common law precedent on the books as well; however, note that the majority view appears to be that the right exists in every state that has not explicitly rejected such interests. The American Law Institute’s Third Restatement of Unfair Competition (1995) §46 also recognizes the Right of Publicity as a distinct and viable legal theory. The parameters of the right vary from state to state, depending on the provisions of any given statute.

New York was the first state to enact a publicity law with the New York Civil Right Law in 1903. This statute prohibits the use of the name, portrait, or picture of any living person without prior consent for “advertising purposes” or “for the purposes of trade.” In the early part of the 20th century, with little precedent for publicity rights, New York viewed publicity rights through the filter of personal rights. New York’s limiting viewpoint was addressed by Judge Jerome Frank in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. 202 F.2d 866 (2nd Cir. 1953). In his decision, Judge Frank distinguished the “right of publicity” from the “right of privacy” by focusing on the economic interests involved, rather than the personal interests characteristic of the right of privacy. Haelan is also cited as the first articulation of these interests as the “Right of Publicity.”

In 2020, New York passed a post-mortem Right of Publicity statute. The statute as well as commentary from the legislative process can be found throughout this site ( RightOfPublicity.com). That the right is of a proprietary nature appears to be an accepted principle, as states enacting Right of Publicity legislation in recent years consistently provide for postmortem rights. The New York Right of Publicity statute unfortunately provides less protection than many other states, though it includes provisions concerning digital manipulation, deep fakes, and the like. Even with the new law, New York’s statute still creates an intriguing proposition:  should attorneys and advisors counsel notable people to ensure he or she is not connected with New York at the time of their death?

The number of years that postmortem publicity rights are recognized varies from state to state. Tennessee guarantees the right for a minimum of 10 years after death, the right can continue in perpetuity contingent on use, like a trademark. Virginia gives 20 years. Florida provides 40 years, while Kentucky, Nevada, Louisiana, and Texas ensure 50 years, California provides 70 years, and Washington spans 75 years. Indiana provides recognition for the Right of Publicity for 100 years after the death of the personality, and endeavors to reach backward for the full extent of those 100 years. Oklahoma, while providing a similar 100-year term of recognition as Indiana, limits the reach-back provision to 50 years.

In 1972, through section 3344 of the California Civil Code, California extended Right of Publicity protection to living personalities. In 1995, California enacted Section 990, the postmortem publicity law, which extended the right for a term of 50 years. Senate Bill 209 was introduced in early 1999 by Senate President Pro Tempore John Burton with the help of Robyn Astaire, the widow of Fred Astaire. The bill was also sponsored by the Screen Actors Guild, and supported by Arnold Schwarzenegger, Tom Cruise, Anjelica Huston and Michael Douglas, as well as by the creator of this site via coordinated support from the clients he worked with at the time. The bill was signed into law in 1999, and Section 990 was renumbered as 3344.1 to more closely coincide with publicity rights for living persons.

One issue of particular importance to Senate Bill 209’s supporters involved issues spawning from the rapid advancement of digital manipulation technology, by which existing footage of celebrities is modified to produce new, spectacular results. Advertisers can now create the impression that John Wayne actually drank Coors beer, that Fred Astaire developed his dancing technique with a Dirt Devil, that Lucille Ball shopped at Service Merchandise, and that Ed Sullivan spoke glowingly of the M-Class Mercedes. The amendment to California’s law endeavored to forbid the alteration or manipulation of a deceased’s name, voice, signature, photograph or likeness in a false manner that is portrayed as factual, unless the personality’s heirs consent. New York’s passage in 2020 of a Right of Publicity statute, while tepid compared to most other Right of Publicity activity, included meaningful provisions protecting against digital manipulation.

If one objects to the idea that some of the preceding licensed uses are inappropriate in some way, consider that the person who owns the respective rights is the one with the responsibility of determining if a use should be authorized.  As it should be.

The way forward

The variations between state Right of Publicity laws occasionally generate scholarly debate over whether a federal Right of Publicity statute would be beneficial. Because of the aforementioned parallels with trademark law, some have proposed that the proper place for a federal Right of Publicity statute is in the Lanham Act. But as the policies and function of Right of Publicity and trademark laws vary, this notion is problematic, if not untenable. See “Symposium: Rights of Publicity: An In-Depth Analysis of the New Legislative Proposals to Congress,” 16 Cardozo Arts 6 Ent. L. 209, 1998.

The Patent, Trademark & Copyright Section of the American Bar Association has occasionally explored federalization of the Right of Publicity. To date, these efforts have broken down under the strain of competing interests. Even without a Federal Right of Publicity statute, the state-based regime is not unmanageable or as confusing as some may argue. In fact, making it seem unmanageable may simply be a strategic effort to undermine the doctrine. There is a discernable consistency in Right of Publicity statutes and case law, even from jurisdiction to jurisdiction. It takes some getting used to, perhaps, but if the critique is complexity one wonders what might be said about antitrust, tax, securities, or many other areas of the law.

Adapted from Indiana: A Celebrity Friendly Jurisdiction, by J. Faber, published in Res Gestae, Vol. 43, No. 9, and last updated January 4, 2024.

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PROTECTING YOUR IDENTITY: SKILLED RIGHT OF PUBLICITY LAWYERS

Dynamic legal protection for creatives and public figures .

RIGHT OF PUBLICITY

Fundamentally, the “right of publicity” is the right of an individual to control any commercial use of his or her name, image, or some other aspects of one’s identity.

The right of publicity is principally a state-based right in the United States, meaning the parameters of the “right” and the extent to which it can be enforced is different in each state. There are some states that have provided this particular right by way of statute. In states which do not have legislation to dictate the right of publicity, the surrounding legal jurisprudence is governed by way of Court precedence and common law. The right of publicity can be passed on to a person’s heir after death since the right is generally considered as a property right instead of a personal one. The right of publicity can also be referred to as personal or publicity rights.

Notably, while there is not explicitly a Federal law which specifically recognizes a right of publicity, Federal legislation does exist which protects against unfair competition, false endorsement and false association. Various invocations of these laws may be appropriate when dealing with rights of publicity issues.

Recording IP Registrations with Customs

“Recording IP registrations with customs” refers to the process of registering your intellectual property (IP) rights, such as trademarks and copyrights, with customs or border protection authorities in a specific country. This registration allows customs officials to identify and take action against the importation or exportation of goods that infringe upon your registered IP rights. Here’s a breakdown of the concept:

• Identify Relevant IP Rights: Before proceeding, determine which of your intellectual property rights you want to register with customs. This could include trademarks, copyrights, or other IP assets that are vulnerable to counterfeiting or infringement.
• Customs Registration: After identifying the IP rights you want to protect, you can submit information about these rights to the customs or border protection agency of the country where you seek protection.
• Information Provided: When registering with customs, you typically provide details about your registered IP rights, such as trademark images, copyright registrations, and other relevant information. This helps customs officials identify potentially infringing goods during inspections.
• Border Enforcement: Once your IP rights are registered with customs, border protection authorities are empowered to enforce your IP rights at the border. This means that customs officials can identify goods that bear IP rights similar to yours and are being imported or exported without proper authorization.
• Monitoring and Detection: Customs officials use the information you’ve provided to monitor shipments and detect counterfeit or infringing goods. They may inspect goods that are suspected of bearing counterfeit trademarks or copyrighted material.
• Seizure and Actions: If customs officials identify goods that appear to infringe on your IP rights, they can seize these goods and take appropriate actions. This might involve contacting you as the IP rights holder and working with you to determine the appropriate course of action, which could include destruction of the infringing goods or legal proceedings against the infringing parties.
• Deterrence: Recording your IP registrations with customs acts as a deterrent to counterfeiters and infringers who might attempt to import or export counterfeit goods. The knowledge that customs authorities are actively monitoring and taking action against IP rights infringements can discourage such activities.
• International Protection: While customs registration is specific to a particular country, similar mechanisms might exist in other countries. It’s important to explore customs recording options in countries where you anticipate potential infringements.

Recording IP registrations with customs is an important step to proactively protect your intellectual property rights from counterfeiting and infringement at national borders. It helps preserve the value of your IP assets and maintain the integrity of the marketplace. Consulting with legal experts experienced in intellectual property law can guide you through this process effectively.

Counseling on Design Patents and Rights

A legal professional with expertise in intellectual property law can provide valuable counsel on design patents and rights. Design patents protect the unique visual appearance of a product, and legal experts can offer guidance on various aspects related to design patents. Here’s how they can help:

• Educating on Design Patents: A legal professional can explain the concept of design patents, including what they cover, the scope of protection, and the benefits of obtaining design patent rights.
• Prior Art Search: Before filing a design patent application, legal experts can conduct a thorough search to identify existing designs that might be similar to yours. This helps determine the uniqueness of your design and the likelihood of obtaining a design patent.
• Design Patent Application Preparation: Legal professionals can assist in preparing and filing a design patent application with the relevant intellectual property office. This includes drafting the application, creating drawings or images of the design, and ensuring that all necessary information is included.
• Application Filing Strategy: They can help develop a strategy for filing design patent applications, considering factors such as the jurisdictions where protection is sought and the timing of filing to maximize rights.
• Responding to Office Actions: If the patent office issues an office action with objections or requests for clarification, a legal professional can assist in preparing a well-structured response to address these issues.
• Infringement Analysis: Legal experts can analyze whether a product or design might infringe on an existing design patent. This analysis helps you understand the potential risks and take appropriate actions to avoid infringement.
• Licensing and Assignment Agreements: If you own a design patent, a legal professional can help draft licensing or assignment agreements that outline the terms for others to use or acquire your design rights.
• Portfolio Management: For businesses with multiple design patents, legal professionals can help manage and maintain the portfolio, ensuring that renewal deadlines are met and rights are properly protected.
• Enforcement of Design Patents: In case of design patent infringement, a legal professional can guide you through the process of enforcing your rights. This could involve sending cease-and-desist letters, negotiating settlements, or pursuing legal action.
• International Considerations: If you’re seeking design patent protection internationally, legal experts can help navigate the intricacies of different jurisdictions’ design patent laws and filing requirements.
• Due Diligence for Transactions: During mergers, acquisitions, or other business transactions, legal professionals can perform due diligence to assess the value and validity of design patents.
• Strategic Advice: Legal professionals can provide strategic advice on how to leverage your design patents to strengthen your brand, market your products, and maintain a competitive advantage.

Engaging a legal professional with expertise in design patents ensures that you make informed decisions about protecting your unique designs, understanding your rights, and navigating potential challenges effectively.

Character Names, Likeness, and Rights

A lawyer can provide valuable assistance in protecting and managing trademark character names, likeness, and rights. Characters can be an integral part of branding, entertainment, and creative works, and legal experts can help ensure that these aspects are properly safeguarded. Here’s how a lawyer can help:

• Trademark Registration: Lawyers can guide you through the process of registering character names as trademarks. They’ll conduct thorough searches to ensure the name is available, prepare the trademark application, and manage the filing process.
• Character Likeness Licensing: Legal professionals can help negotiate and draft licensing agreements for the use of a character’s likeness. This could include agreements with manufacturers, advertisers, and entertainment companies.
• Copyright Protection: If the character’s likeness or portrayal is protected by copyright, lawyers can help register and enforce those rights, preventing unauthorized use, reproduction, or distribution.
• Personality Rights and Likeness: Lawyers can advise on personality rights and likeness protection, especially in cases involving real people whose likeness is used without consent.
• Drafting Agreements: Lawyers can draft agreements that outline the terms and conditions for using character names, likenesses, or images in various contexts, such as movies, merchandise, advertising, and endorsements.
• Entertainment Contracts: Legal experts can assist in negotiating contracts for actors, performers, and creators to ensure proper compensation and protection for character rights.
• Enforcement and Infringement: In cases of unauthorized use or infringement of character names or likenesses, lawyers can help you enforce your rights by sending cease-and-desist letters, negotiating settlements, or pursuing legal action.
• Portfolio Management: If you have a portfolio of characters, lawyers can help manage and protect those assets by monitoring potential infringements, renewing trademark registrations, and maintaining documentation.
• Branding and Licensing Strategies: Lawyers can advise on strategies to maximize the value of character names and likenesses through licensing, branding, and merchandising.
• Defending Against Claims: If you’re accused of infringing on someone else’s character rights, lawyers can assess the situation, advise on potential defenses, and represent you in negotiations or litigation if needed.
• International Considerations: For characters with international appeal, lawyers can guide you through the process of protecting and enforcing character rights in different jurisdictions.
• Mediation and Dispute Resolution: In case of disputes involving character rights, lawyers can facilitate mediation and alternative dispute resolution methods to reach amicable resolutions.

Engaging a lawyer experienced in character name, likeness, and rights issues is crucial to ensure that your creative assets are legally protected, your rights are enforced, and your business interests are safeguarded.

First Amendment Issues and IP Rights

A lawyer can play a significant role in navigating the intersection of First Amendment issues and intellectual property (IP) rights. Balancing freedom of expression with IP protection can be complex, and legal professionals with expertise in both areas can provide valuable guidance. Here’s how a lawyer can assist with First Amendment and IP rights matters:

• Legal Consultation: A lawyer can assess the specific situation and provide advice on how First Amendment rights and IP rights interact. They can help you understand the boundaries and limitations of each area of law.
• Preventive Guidance: Legal experts can help you structure creative works or content in a way that minimizes the risk of infringing on others’ IP rights while still respecting First Amendment rights.
• Fair Use Analysis: Lawyers can evaluate whether a particular use of copyrighted material qualifies as fair use under copyright law. Fair use allows limited use of copyrighted material for purposes like criticism, commentary, news reporting, and education.
• Parody and Satire Protection: Legal professionals can assist creators in understanding the legal implications of creating parodies or satirical works, which may involve balancing First Amendment rights with potential copyright or trademark issues.
• Defending Against IP Claims: If you’re facing an IP claim that involves First Amendment considerations, a lawyer can help you mount a defense based on free speech rights while addressing any legitimate IP concerns.
• Prior Restraint Considerations: Lawyers can provide guidance on situations involving potential prior restraint, where a party tries to prevent the publication or dissemination of certain content due to alleged IP infringement.
• Trademark and Expression: Legal experts can help you understand the nuances of using trademarks in expressive works while avoiding confusion or dilution claims.
• Licensing and Permissions: Lawyers can help negotiate licensing agreements that balance IP rights and First Amendment rights when using copyrighted or trademarked material in creative works.
• Public Domain and Free Expression: Legal professionals can help creators identify content that is in the public domain, which can be used more freely in expressive works without running into IP conflicts.
• Counseling on Censorship Issues: Lawyers can advise on potential censorship issues involving government actions that may infringe on First Amendment rights related to IP use.
• Litigation and Dispute Resolution: If disputes arise involving IP rights and free speech, lawyers can represent your interests in negotiations, mediation, arbitration, or litigation.
• Policy Advocacy: Lawyers with expertise in both areas can contribute to discussions around IP laws and First Amendment protections, advocating for a balanced legal framework that respects both creative expression and IP rights.

Navigating First Amendment issues in the context of IP rights requires a nuanced understanding of both legal areas. Engaging a lawyer experienced in intellectual property law and First Amendment law ensures that your rights are protected while respecting the rights of others and the broader legal landscape.

Security Interests for IP Rights

Security interests for intellectual property (IP) rights refer to legal arrangements in which IP assets are used as collateral to secure a loan or financial obligation. In such arrangements, the IP rights serve as a form of guarantee for the lender in case the borrower defaults on the loan. Here’s an explanation of security interests for IP rights:

• Collateralized IP Assets: When a borrower seeks a loan or financing, they might offer their IP assets, such as patents, copyrights, trademarks, or trade secrets, as collateral. These IP rights hold inherent value that can be used to secure the loan.
• Creation of a Security Interest: To establish a security interest, a legal agreement is typically drafted, which outlines the terms of the loan, the IP assets being used as collateral, and the rights and responsibilities of both parties.
• Security Agreement: The security agreement is a contract that specifies the borrower’s obligations, the lender’s rights in case of default, and the terms of releasing the security interest once the loan is repaid.
• Perfection of the Security Interest: To ensure that the lender’s claim to the collateral is recognized and enforceable against other creditors, the security interest must be perfected. This might involve filing a UCC-1 financing statement (under the Uniform Commercial Code) or adhering to specific requirements outlined by IP registries.
• Enforcement and Default: If the borrower fails to fulfill their loan obligations, such as making payments, the lender can take steps to enforce the security interest. This might involve seizing and selling the IP assets to recover the outstanding debt.
• Valuation and Appraisal: Prior to creating a security interest, the IP assets may need to be valued to determine their worth. This valuation helps establish the maximum loan amount that can be secured by the IP rights.
• Due Diligence: Lenders often conduct due diligence to assess the quality, ownership, and potential value of the IP assets being offered as collateral. This involves evaluating the strength of the IP rights, any existing encumbrances, and the potential for infringement.
• Terms and Conditions: The security interest agreement outlines the specific conditions under which the lender can exercise its rights to the IP assets, such as in the event of default or non-payment.
• Release of Security Interest: Once the borrower fulfills their obligations, the lender releases the security interest, removing the encumbrance on the IP assets. This might require filing a release or termination statement.
• IP-Specific Considerations: Different types of IP rights have varying procedures for creating, perfecting, and releasing security interests. For instance, patents might require notifying the relevant patent office, while trademarks could involve registration with the appropriate trademark office.

Security interests for IP rights provide a mechanism for businesses to leverage their intangible assets to secure financing. However, it’s essential to navigate these arrangements carefully, as they involve complex legal, financial, and valuation considerations. Consulting legal professionals and financial experts familiar with intellectual property law and secured transactions can help ensure that these arrangements are properly structured and executed.

Entertainment & Publication Title Search and Clearance

A lawyer can provide valuable assistance in conducting entertainment and publication title searches and clearances. Ensuring that titles for movies, books, music, and other creative works are unique and do not infringe on existing rights is crucial to avoid legal disputes. Here’s how a lawyer can help with this process:

• Title Search and Analysis: Legal professionals can conduct comprehensive searches to identify existing titles that might be similar to the one you intend to use. This involves searching various databases, trademark records, domain names, and other sources to assess potential conflicts.
• Assessing Likelihood of Confusion: Lawyers can analyze search results to determine whether the title you’re considering is likely to cause confusion with existing titles, trademarks, or other IP rights.
• Trademark Clearance: If the title is intended for use as a trademark, lawyers can evaluate its eligibility for trademark protection and clear it for registration. They’ll assess the distinctiveness of the title and its potential for infringing on existing trademarks.
• Copyright Considerations: For creative works like movies, books, and music, legal experts can advise on potential copyright issues related to title usage and guide you in avoiding similarities to copyrighted works.
• Domain Name Availability: Lawyers can check the availability of domain names related to the title, which is especially important for online content and branding.
• Risk Assessment: Based on the search results and legal analysis, lawyers can provide an assessment of the potential legal risks associated with using the chosen title.
• Alternative Title Suggestions: If the initial title search reveals potential conflicts, legal professionals can help you brainstorm alternative titles that are more likely to be cleared and registered.
• Negotiations and Licensing: In some cases, titles might be in use by other parties, but negotiations or licensing agreements can be arranged to allow you to use the title without infringing on their rights.
• Due Diligence for Investors and Distributors: If you’re seeking investors or distributors for your creative work, lawyers can provide evidence of title clearance, reassuring potential partners about the absence of legal complications.
• Documentation and Records: Legal experts can maintain thorough documentation of the title search process, search results, and any clearance-related actions taken. This documentation can be valuable if legal disputes arise later.
• International Considerations: If you’re planning to distribute your creative work internationally, lawyers can help navigate title clearance in different jurisdictions, considering trademark and copyright laws.
• Enforcement and Dispute Resolution: In case of disputes over title usage, lawyers can assist in enforcing your rights, negotiating with potential infringers, or representing your interests in legal proceedings.

Engaging a lawyer experienced in entertainment and intellectual property law is essential to ensure that the titles you choose for your creative works are legally sound and unlikely to result in conflicts or legal challenges down the line.

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Right of Publicity

The right of publicity, also known as personality rights or publicity rights, is a legal concept that grants individuals the exclusive right to control and profit from the commercial use of their name, image, likeness, or other identifiable aspects of their persona. It essentially protects a person’s right to control the commercial exploitation of their identity. The right of publicity is primarily concerned with preventing unauthorized commercial uses of a person’s identity for advertising, merchandising, or other promotional purposes without their permission, giving individuals the ability to prevent others from using their name or likeness in a way that could imply their endorsement or association with a product, service, or brand without their consent, or seek damages in connection with unauthorized use that has occured. This right is often associated with celebrities, athletes, and public figures whose names, images, or personas have significant commercial value. However, it can apply to any individual, as long as there is a recognizable aspect of their identity that can be exploited commercially.

Laws regarding the right of publicity vary across jurisdictions. Some countries recognize it as a common law right, while others have specific statutes in place to protect individuals’ publicity rights. The scope of this right, its duration, and the exceptions and limitations placed on it can differ depending on the legal jurisdiction.

Governing Law

In the United States, the right of publicity is largely protected by state common or statutory law, and only about half the states have distinctly recognized a right of publicity. It is worth noting, however, that both New York and California have laws in place to protect an individual’s right to publicity.  Further, there is also protection provided by federal law.

i. State Law in New York

New York has codified its right of publicity “as part of its ‘Right of Privacy’ statute, at Article 5 of the N.Y. Civil Rights Law … thereby providing protection for a person’s: name, portrait, picture, and voice.” ( DMLP ). Note: New York does not recognize a posthumous right of publicity. (Mirone v. MacMillan, 894 F.2d 579, 585 (2d Cir. 1990)).

To violate New York’s Right of Privacy statute, the use of a person’s identity must be:

• Within New York state;
• For advertising or trade purposes (in other words, a use “designed to solicit sales of products or services is forbidden;”) and
•  Without written consent.

Exceptions to the right of publicity include protections for:

• Professional photographers against suits by their subjects;
• The use of an author’s name, in connection with the work of that author;
•  Owners of copyrights in sound recordings; and
•   Using a person’s identity in connection with products, if the person manufactured or sold those products under their identity. ( DMLP ).

Also, there is a significant newsworthiness exception, which exempts the use of “a person’s identity in connection with a ‘newsworthy’ article, such as a newspaper article.” ( DMLP ).

ii. State Law in California

The Right of Publicity in California “protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes. California has two systems of Right of Publicity law: a statute, and a common law right.” ( DMLP ).

California’s state statute protects a person’s:

• Actual voice, not imitations ( see  Midler v. Ford, 849 F.2d 460, 463 (9th Cir. 1988));
• Photograph (as long as he/she is “readily identifiable”); and
•  Likeness. (Cal. Civ. Code § 3344).

In determining violations, courts have interpreted the statute to impose a three-step test:

• Was there a “knowing” use of the plaintiff’s protected identity?
• Was the use for advertising purposes?
• Was there a direct connection between the use and the commercial purpose? ( DMLP ).

iii. Common Law in California

Courts have held that the common law right is actually quite broader, as it serves to protect an individual’s “identity.” ( See  Abdul-Jabbar v. General Motors, 85 F.3d 407, 413-14 (9th Cir. 1996)).

Courts have interpreted “identity” broadly, “covering more uses than does the statutory right of publicity. For example, imitating someone’s voice is not a violation of the statute, but it may violate the common law right. See Waits v. Frito-Lay, 978 F.2d 1093, 1098-1100 (9th Cir. 1992). A picture of a distinctly-decorated race car can be a common-law violation, even if the driver himself is not visible. Motschenbacher v. R.J. Reynolds Tobacco, 498 F.2d 821, 827 (9th Cir. 1974). A robot can constitute a common-law violation, even if not sufficiently detailed to violate the statute. White v. Samsung, 971 F.2d 1395, 1397-99 (9th Cir. 1992).” ( DMLP ).

Courts generally describe California’s common-law right as a four-step test, in which a plaintiff must allege:

• The defendant’s use of plaintiff’s “identity”;
• The appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
• Lack of consent; and
• Resulting injury.  See  White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992). ( DMLP ).

iv. Federal Law

If a person can establish that “an aspect of his or her identity as a trademark, protection may be provided by Federal law.” ( LII ). Moreover, federal law – by way of the Lanham Acts – can also provide protection where a person’s identity is used to falsely advertise a product or designate its origin.

Right of Publicity in Practice

When using a celebrity’s name, image, likeness or voice on goods or in advertising for the goods, companies should: Be aware of the celebrity’s right of publicity, which allows a person to control the commercial exploitation of his identity. While the infringement of publicity rights and resulting consumer confusion may be asserted in a cause of action under Section 43(a) of the Lanham Act, rights of publicity are protected primarily under state law. Therefore, relevant state law should be consulted to determine whether a particular state recognizes the right of publicity and the framework for protecting these rights.

A person may generally freely assign or sell the right to use his identity in whole or in part (for example, just his name). Unlike trademark assignments, there is no restriction on assignments of publicity rights separate from an accompanying business or goodwill. A person may also generally license the right to use his identity, in whole or in part, to another person or entity. The license can be exclusive or non-exclusive and may authorize sublicenses.

Both assignments and licenses may impose various restrictions, including contractual restrictions on the:

• Specific elements of identity assigned or licensed for use (for example, the celebrity’s voice);
• Nature and extent of the assignment or licensed use (for example, on t-shirts sold online);
• Geographic territory of assignment or licensed use; and
• Duration of the assignment or licensed use. (Fashion Law: Overview, Practical Law Practice Note 2-616-4923).

Failure to Obtain a License for Publicity Rights

If a fashion brand or other company fails to obtain an assignment or license of publicity rights, the celebrity, whose name, image or likeness has been used may seek the following remedies:

• Injunctive relief;
• Monetary damages;
• An award of the infringer’s profits; and/or
• Punitive damages for willful violations.

A Copyright Right of Publicity

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders.  State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others.  Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity.  This Article examines for the first time a further limitation imposed by copyright law:  when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction.  This Article offers novel contributions to the literature on copyright overreach and:  (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a “copyright right of publicity” to exempt the publicity-rights holder’s use from copyright infringement liability.  Notably, this Article contributes uniquely to the literature by revealing new insights gained from an exclusive first-hand perspective of an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.

Professor Weisbord presented his Essay, “A Copyright Right of Publicity,” at a special colloquium event at Fordham Law School on January 27, 2016.  Following a presentation of the paper, the colloquium featured a vivid illustration of the relevant legal principles through an exciting live demonstration of the fair use doctrine:  Five professional dancers staged a choreographed dance presentation set to the music of “What Would Brian Boitano Do?”

Live Dance Presentation, A Demonstration of the Fair Use Doctrine from Fordham Law Review on Vimeo .

Choreography:  Richard Hinds (Broadway credits:  Disney’s Newsies, Jekyll and Hyde, Il Divo:  A Musical Affair; Television credits:  America’s Got Talent).

Dancers:  Drew Franklin, David Paul Kidder, Cory Lingner, Anthony Raimondi, and Sharrod Williams

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What is right of publicity?

The right of publicity is the right to control the commercial exploitation of your name, likeness, voice, and other identifiable aspects of your identity (commonly referred to by the acronym “NIL”, which means ones’ name, image, and likeness). For example, suppose you want to sell items bearing the image of a famous entertainer or athlete, or just the guy that lives across the street. In that case, you need to get a license from them first, and if they grant you that license, which they are not obligated to do, you will probably have to pay them a hefty fee (maybe not so much for the guy across the street, but you still need to get his consent).

There is no federal law recognizing the right of publicity. Rather it is addressed at the state level, with significant variation on a state-by-state basis. In some states, the right of publicity is only applicable to celebrities, whereas other states have applied this right to any individual. Additionally, some states, like California, recognize that the right to publicity can survive an individual’s death.

More info on the Right of Publicity.

Are there limits to the Right of Publicity?

Yes, there are. Most commonly, the use of a person’s name, likeness, or persona for news, information, or public interest purposes is not a violation of the right of publicity. For this reason, for example, a professional baseball player cannot prevent the use of a photo of him going from first to third in last night’s game in the newspaper.

What are some examples of the Right of Publicity?

Do you sell consumer products and want to use the name and likeness of a celebrity in your marketing efforts? Are you an athlete or celebrity being offered a sponsorship or endorsement agreement? Are you the guy that lives across the street and found, to your surprise, that your smiling face appears on thousands of coffee mugs being sold by a coffee purveyor? Are you an NCAA athlete that would like to accept a sponsorship/endorsement offer from a local business without jeopardizing your eligibility? Did you do something silly in public and now find a photo of yourself plastered on t-shirts? Do you represent the estate of a deceased celebrity and seek to prevent rampant exploitation of their likeness? Are you photographing models to use those images in an advertising campaign?

All of these scenarios (and many others) involve the right of publicity.

How can we help you?

Proceeding without an appropriate right of publicity license can be very costly. For example, violating California’s right of publicity statute entitles an aggrieved party to damages as well as the violator’s profits, an award of attorneys’ fees, and, in some cases, punitive damages. So tread carefully in this area and contact the lawyers at Crown ® , LLP if you have any questions about the right of publicity.

At Crown ® , LLP we believe that creativity is developing products, brands, music, and art that is informing and entertaining. Our clients work in all kinds of industries, from tea to t-shirts, beer to Broadway, and all the creative in between.

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Right of Publicity

The right to control the commercial use of one’s identity, also known as the “right of publicity,” is a newer form of intellectual property right, but it is increasingly important due to the prevalence of sponsorships and endorsements involved in the marketing and advertising of today. Cantor Colburn attorneys prosecute and defend clients' rights of publicity in many ways.

We provide strategic counsel on the development of clients' rights regarding the use of their personas, including names, images, photographs, voices, signatures, and other aspects of their identities, and provide guidance on how to protect and enforce such characteristics.

Through regular reviews of client marketing and advertising materials, we help clients both minimize exposure to claims for misappropriation of rights of publicity and avoid inadvertent violations.

Policing of proper use is key to successful enforcement of a client’s rights of publicity. When rights of publicity are infringed, we act quickly to resolve the issue through settlement or litigation. Should a third-party claim be made against a client, we ably defend them both in and out of court.

In addition, our team regularly reviews licensing agreements for both licensors and licensees to ensure compliance with applicable rights of publicity laws.

We are experienced in preparing and negotiating agreements for the assignment and transfer of the full spectrum of intellectual property rights, including rights of publicity. For clients engaged in merger, acquisition, or divestiture transactions, we conduct due diligence to determine that all IP rights are in order.

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Rights of Publicity & Privacy

The right to control the commercial use of one’s identity, also known as the “right of publicity,” is an increasingly important area of intellectual property law as sponsorships and endorsements have become commonplace in advertising and as damages in right of publicity cases have risen substantially. Ladas & Parry has represented the interests of many famous individuals and groups whose name, likeness, or image are an important asset. We also counsel lesser known clients regarding their recourse against others that misappropriate their personas for commercial use and rights of privacy issues such as intrusion, false light, and truthful publication of private facts. We believe that policing of proper use of one’s identity is essential for successful enforcement of a client’s rights of publicity and privacy. We also represent the estates of many late artists and celebrities to develop strategies to protect and commercialize their name and likeness rights posthumously.

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+ Negotiating Endorsement, Sponsorship & License Agreements

We have expertise in representing individuals entering into endorsement, sponsorship and license agreements for use in commercial advertising, branded entertainment, and product merchandising. Our international transactional IP practice enables us to appreciate the variation in publicity rights on a global scale to ensure that our clients are receiving the full benefits appropriate under a particular agreement. Endorsement, sponsorship, and licensing deals are often only one aspect of our services to our entertainment clients, including clients ranging from major record labels, production companies and motion-picture companies to visual artists, recording artists, actors, and comedians.

+ Misappropriation of the Right of Publicity in the United States

Protection of one’s name, image, or likeness is not governed by federal law in the United States and levels of protection vary greatly both from state to state and from country to country. In all U.S. states that recognize a right of publicity, the right extends to public figures, and in a majority of U.S. states, courts will also allow non-public figures to claim a right of publicity when their image is used for commercial purposes without consent. Our knowledge of the various laws which grant right of publicity protection allows us to provide clients with a comprehensive understanding of where they do and do not have rights recognized by law and how best to combat misuse of their rights. We have successfully settled many right of publicity cases.

+ The Rights of Publicity and Privacy Throughout the World

Rights of publicity and privacy vary throughout the world.   As global IP specialists, we counsel our clients on international and local laws and strategies that will protect their rights in their name and likeness or that of their celebrated deceased ancestors.  Even in many countries that do not formally recognize a post-mortem right of publicity or privacy, other laws, such as trademark, unfair competition, passing off, or false endorsement, may be used to serve a similar purpose.  We counsel clients regarding these rights throughout the world and how to effectively commercialize and protect their name, image and likeness, and/or prevent others from doing so without authorization.

+ Protecting Identity Through Registered Trademarks

An effective means of protecting one’s image and likeness can be through trademark registration.  Because almost anything can be protected by a trademark, celebrities and public figures will often seek trademark registration for their names, signatures, images of their faces, and other identifying features, to use in connection with goods sold or services rendered in key categories.  We have utilized trademark registration to protect the names and other characteristics of many clients as a complement to the right of publicity or an alternative when other forms of protection are unavailable. We have counseled estates of late public figures or celebrities to determine the best means of post mortem protection.

+ Domain Names & Social Media

Through Corsearch , Ladas & Parry’s preferred brand monitoring service and ICANN-accredited domain name registry subsidiary, we assist clients in proactively monitoring and registering their personal names as domains and as usernames, pages, and groups on social media websites, whether to reserve the name for use or to prevent or stop others from misappropriating the name for their own purposes.

+ Entities and Ownership

In anticipation that efforts to commercialize the persona of a deceased artist or celebrity will be successful, we counsel their estates on appropriate vehicles for ownership of posthumous rights in order to reduce the risks of disputes by individual parties over ownership of those rights.

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Copyright Office Urges Federal Publicity Rights for Moral Rights Protection

What’s the news.

The Office set forth this position in a recently released Policy Report, “Authors, Attribution, and Integrity: Examining Moral Rights in the United States,” which addresses various issues surrounding moral rights. In the Report, the Office restates its concern with protecting the moral rights of authors and sets forth areas where these rights could be reinforced. Notably, the Office set forth considerations in connection with a possible federal law addressing the right of publicity which would serve to harmonize the current publicity law framework that exists in the United States.

What Are Moral Rights?

Moral rights are the rights of a creator of copyright protected work to receive credit for such work and, in some instances, to protect the integrity of the work to ensure that it properly represents the artist. While the specifics of moral rights vary internationally, the US requires an express waiver of moral rights in most instances — even in the instance of a license or assignment of a copyright-protected work. For example, in a situation where an artist licenses his or her painting or photograph to be used by a company on its packaging, that artist would still have moral rights in the work that require such artist to be identified as the creator. Given the importance of this right and the fact that it often becomes entangled with publicity rights, the Office explored ways to better utilize publicity rights, on the federal level, to assist in the protection of moral rights.

What Are Publicity Rights?

Publicity rights are an individual’s right to control the commercial use of his or her name, likeness, voice or other indicia of identity. The right is currently protected under the varying laws of a majority of US states, and the scope of the right varies from state-to-state. The ability to enforce the right is often hampered by variations in state laws, which differ — as noted by the Office — on issues including “the availability of post-mortem rights, the length of protection, whether such rights are transferable, the scope of protectable ‘personas,’ whether the personality right of non-famous individuals, and the proper scope of exceptions.” These variations make the reliance on these rights very complicated.  The goal for any federal law would be to harmonize and remove the ambiguity that currently exists.

What Are the Issues with the Current System Governing Publicity Rights?

In the Report, the Office recognizes that the right of publicity is an important component to protect the moral rights of authors and performers and considers mechanisms for improving the current platform for protection.

The Report explains that Congress would need to address certain issues if it were to develop a federal privacy law. Specifically, the following items were flagged as issues that need to be addressed:

• Whether post-mortem rights are available;
• The length of protection;
• Whether the rights are transferrable;
• The scope of protectable “personas;” and
• Whether the personality right of non-famous individuals should be protected, and the scope of any exceptions.

These are issues that celebrities and their estates grapple with, since the current framework does not provide a consistent level of protection from state-to-state. Furthermore, other intellectual property rights should be considered – such as copyright and trademark. If the Office decided to pull publicity rights under its umbrella of protection, it may alleviate the current complication imposed by the varied protection.

What’s Next?

While the Office does raise considerations, it did not draft language for a proposed law. Still, the Office does appear to favor a federal law that sets a floor for publicity rights as opposed to one that wholly preempts state law.

If treated as a floor, this would be consistent with the way that the Lanham Act and the Defend Trade Secrets Act is treated. Additionally, this “floor” would provide a baseline of rights for individuals but would not otherwise preempt the rights offered by the various states. This would also avoid disturbing current precedent and expectations deriving from current state law.

If Congress chooses to permit preemption, the noted inconsistencies between state laws would need to be considered in preparing a federal law. This would make the drafting activity more difficult, but would also be inconsistent with current federal IP protections as they relate to state protections.

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2022 Illinois Compiled Statutes Chapter 765 - PROPERTY 765 ILCS 1075/ - Right of Publicity Act.

(765 ILCS 1075/1)

Sec. 1. Short title. This Act may be cited as the Right of Publicity Act.

(Source: P.A. 90-747, eff. 1-1-99.)

(765 ILCS 1075/5)

Sec. 5. Definitions. As used in this Act:

"Commercial purpose" means the public use or holding out of an individual's identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.

"Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.

"Individual" means a living or deceased natural person, regardless of whether the identity of that individual has been used for a commercial purpose during the individual's lifetime.

"Juristic person" means a partnership, trust, estate, corporation, unincorporated association, or other organization capable of suing and being sued in a court of law.

"Name" means the actual name or other name by which an individual is known that is intended to identify that individual.

"Person" means a natural or juristic person.

"Work of Fine Art" means (i) a visual rendition including, but not limited to, a painting, drawing, sculpture, mosaic, videotape, or photograph; (ii) a work of calligraphy; (iii) a work of graphic art including, but not limited to, an etching, lithograph, serigraph, or offset print; (iv) a craft work in materials including, but not limited to, clay, textile, fiber, wood, metal, plastic, or glass; or (v) a work in mixed media including, but not limited to, a collage, assemblage, or work consisting of any combination of items (i) through (iv).

(765 ILCS 1075/10)

Sec. 10. Recognition of right of publicity. The right to control and to choose whether and how to use an individual's identity for commercial purposes is recognized as each individual's right of publicity.

(765 ILCS 1075/15)

Sec. 15. Transferability, descendability, and divisibility. The rights under this Act are property rights that are freely transferable in whole or in part to any person either by written transfer, including but not limited to wills and trusts, or by intestate succession only to an individual's spouse, parents, children, and grandchildren, except that the rights under this Act are not subject to levy or attachment and may not be the subject of a security interest. Nothing in this Section limits the ability of any party to levy, attach, or obtain a security interest in the proceeds of the rights under this Act or the proceeds of the exercise of those rights.

(765 ILCS 1075/20)

Sec. 20. Enforcement of rights and remedies.

(a) The rights and remedies set forth in this Act may be exercised and enforced by:

• (1) an individual or his or her authorized representative;
• (2) a person to whom the recognized rights have been transferred by written transfer under Section 15 of this Act; or
• (3) after the death of an individual who has not transferred the recognized rights by written transfer under this Act, any person or persons who possesses an interest in those rights.

(b) Each person described in paragraph (3) of subsection (a) shall make a proportional accounting to, and shall act at all times in good faith with respect to, any other person in whom the rights being enforced have vested.

(765 ILCS 1075/25)

Sec. 25. Termination of rights of deceased individual. The rights set forth in this Act terminate if:

(a) a deceased individual has not transferred his or her rights in writing under Section 15 of this Act; and

(b) the individual has no living spouse, parents, children, or grandchildren.

(765 ILCS 1075/30)

Sec. 30. Limitations regarding use of an individual's identity.

(a) A person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act or their authorized representative.

(b) If an individual's death occurs after the effective date of this Act, a person may not use that individual's identity for commercial purposes for 50 years after the date of the individual's death without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act.

(765 ILCS 1075/35)

Sec. 35. Applicability.

(a) This Act applies to acts or events that take place after the effective date of this Act.

(b) This Act does not apply to the following:

• (1) use of an individual's identity in an attempt to portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio-visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services;
• (2) use of an individual's identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign;
• (3) use of an individual's name in truthfully identifying the person as the author of a particular work or program or the performer in a particular performance;
• (4) promotional materials, advertisements, or commercial announcements for a use described under paragraph (1), (2), or (3) of this subsection; or
• (5) use of photographs, videotapes, and images by a person, firm, or corporation practicing the profession of photography ("professional photographer") to exhibit in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition has been given by the individual portrayed.

(765 ILCS 1075/40)

Sec. 40. Violations; monetary relief.

(a) A person who violates Section 30 of this Act may be liable for either of the following, whichever is greater:

• (1) actual damages, profits derived from the unauthorized use, or both; or
• (2) $1,000.

(b) Punitive damages may be awarded against a person found to have willfully violated Section 30 of this Act.

(765 ILCS 1075/45)

Sec. 45. Establishment of profits. In establishing profits under paragraph (1) of subsection (a) of Section 40 of this Act:

(a) the plaintiff is required to prove the damages or gross revenue attributable to the unauthorized use; and

(b) the defendant is required to prove properly deductible expenses.

(765 ILCS 1075/50)

Sec. 50. Injunctive relief. Upon a showing of cause as required by Article XI of the Code of Civil Procedure for the issuance of injunctive relief, the court may issue such temporary restraining orders, preliminary injunctions, and permanent injunctions as may be appropriate under this Act.

(765 ILCS 1075/55)

Sec. 55. Attorney's fees; costs. The court may award to the prevailing party reasonable attorney's fees, costs, and expenses relating to an action under this Act.

(765 ILCS 1075/60)

Sec. 60. Rights and remedies. The rights and remedies provided for in this Act are meant to supplant those available under the common law as of the effective date of this Act, but do not affect an individual's common law rights as they existed before the effective date of this Act. Except for the common law right of publicity, the rights and remedies provided under this Act are supplemental to any other rights and remedies provided by law including, but not limited to, the common law right of privacy.

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right of pu blic i ty

Legal definition of right of publicity, dictionary entries near right of publicity.

right of privacy

right of publicity

right of redemption

Cite this Entry

“Right of publicity.” Merriam-Webster.com Legal Dictionary , Merriam-Webster, https://www.merriam-webster.com/legal/right%20of%20publicity. Accessed 21 Apr. 2024.

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