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The Right of Publicity

Hey, That’s Me!
You spend months working on your cosplay outfit, and it turns out perfect. You are the hit of the con, with everyone taking your picture. Then, all of a sudden, you see you and your outfit on all kinds of merchandise, ranging from coffee mugs to posters. Is that legal? What can you do?

The Right of Publicity
Unlike constitutionally protected rights, like the freedom of speech, the right of publicity is a hodge-podge of state and common laws. To be sure what is and what is not allowed under the right of publicity, it is important to check the laws of the state in which the use is occurring. Even though these laws differ from state to state, some general guidelines do emerge. The following is an amalgamation of various state laws:

Background on The Right of Publicity
The right of publicity is what prevents a company from using a photograph of someone in its advertisements without obtaining proper consent. The relatively new right of publicity has developed over the past one hundred years from the much older right of privacy. Not long after its initial recognition, the right of publicity developed into a separate interest, quite different from the old English common-law right of privacy. The right of publicity protects the commercial interest in one’s persona, name, and likeness and, in some jurisdictions, one’s nickname, voice, mannerisms, characterizations, and performing style. In 1903, the State of New York enacted a statute providing criminal and civil penalties for unauthorized use of the name, portrait, or picture of any living person for advertising or purposes of trade. The right was not identified as the right of publicity, however, until 1953 in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.

Twenty-eight states have some form of protection for the right of publicity. Eighteen states have actual statutes protecting this right. The remaining ten states rely on common law, which is often broader and more comprehensive than most right of publicity statutes. Throughout the country, the duration of the right of publicity varies widely from state to state. The duration can be as short as the life of the individual or as long as commercial exploitation of the persona continues.

Types of Protection
Curiously, although the right of publicity began by extending the right of privacy to cover unauthorized use of a persona in advertising, the right now relates primarily to celebrities interested in promoting the “right” kind of publicity. Right of publicity laws have developed in conjunction with this country’s development of “celebrities” themselves, changing to accommodate the interests of these particular individuals. The key to any cause of action for right of publicity is whether the usage is identifiable by the public with the particular individual. Use of a celebrity’s voice, dance moves, or even fighting style may violate a celebrity’s right of publicity if the public identifies the appropriated usage with the celebrity.

It is not necessary to be a celebrity to assert the right of publicity. However, given the lower desirability of misappropriating a non-celebrity likeness, the higher likelihood of a non-celebrity noticing or even caring about the usage and the lower damages involved, non-celebrity misappropriations of likeness, while being no less violations of the right of publicity, often fly under the radar. Throughout the country, even if the unauthorized usage of a persona is not actionable under the right of publicity laws, these other causes of action may be available:

Implied endorsement
Trademark Laws
State Dilution Laws
Copyright Laws

The primary defense to a claim of right of publicity is that the usage was non-commercial. The idea of financial vacuity, or that the party using the image is not making money from the image, etc., is particularly important on the Internet where most individuals setting up “fan” sites obtain no pecuniary benefit. To avoid liability, a defendant can also claim that the usage was for critical commentary or that the material was used in association with news reporting. To reduce or avoid liability, a defendant can claim that the usage was merely media promoting itself (use in advertising of actual front-page tabloid bearing plaintiff’s likeness), social commentary, or a parody of the individual. A blog post about a celebrity’s recent drunken escapades would likely be able to use the celebrity’s image in association with the post under a claim that the newsworthiness of the story and the use of the blog as a media outlet overrides the celebrity’s right of publicity.

The most common relief sought in a cause of action for right of publicity is injunctive relief. In addition, a plaintiff may collect the estimated value of an appropriate licensing agreement for the alleged usage, damages for deceptive marketing, and injury to emotion or reputation.

Unlike trademarks, the right of publicity can be licensed or assigned “in gross” without the necessity of transferring business goodwill. Because goodwill is not a necessary component of assigning publicity, the right of publicity is also very different from the right of privacy, which cannot be assigned at all. When licensing or assigning a right of publicity, the grantor should reserve all rights not otherwise granted. Conversely, the recipient should attempt to obtain a future technologies clause. Such a clause would include authorization to use the likeness by any means, methods, and technologies now known or which become known.

The Right of Publicity Online
In the past, right of publicity cases have typically centered on using a person’s exact name or actual photograph. With the advent of sophisticated software, however, the image of an individual can be modified across a continuum from an easily recognizable form to one identifiable as a completely separate individual. Accordingly, it is difficult to determine at what point along the continuum usage would not constitute a violation of the individual’s right of publicity.

In Pesina v. Midway Mfg. Co., the plaintiff was used as a model for a video game character. The video game manufacturer then used the video game character in a subsequent video game without plaintiff’s permission. The case involved a martial arts game in which the plaintiff’s moves were computerized and associated with a video game character. The court dismissed the plaintiff on summary judgment. The court stated that there was no violation of plaintiff’s right of publicity, because plaintiff could not show his identity had become inextricably intertwined in the public mind with the video game character.

Michaels v. Internet Entertainment Group, Inc., involved a private videotape made by Pamela Anderson Lee and her then boyfriend, Bret Michaels. The rather blue videotape fell into the hands of the defendant, and the defendant intended to disseminate the videotape on the Internet. The court granted an injunction against the defendant’s distribution of the material, finding a likelihood of success on the merits. Courts will typically prevent any such unmitigated commercial distribution of a celebrity’s likeness outside of a news format.

Michaels v. Internet Entertainment Group, Inc., involved the same videotape. This case, however, also involved a tabloid television show as the defendant. The court balanced the plaintiff’s right of publicity against the television show’s First Amendment rights and rights under California Civil Code Section 3344(d). The court held that as the love lives of stars were indeed newsworthy and that the news organization’s right to air the material outweighed the plaintiff’s right of publicity. The court denied the injunction against the television show. The difference between this case and the last is the great deference courts show news organizations under the First Amendment. The court’s protection of news sources is an important consideration to take into account when deciding how a court might come out on a right of publicity issue, which may, at some point, involve your company.

In Astaire v. Best Film & Video Corp., the court held that inclusion of Fred Astaire‘s likeness on video tapes for Fred Astaire Dance Studios was not a violation of the plaintiff’s right of publicity in the deceased. Under California Civil Code Section 990(n), unauthorized use of a deceased personality’s name, voice, signature, photograph, or likeness is exempted from liability if such use is in a play, book, magazine, newspaper, musical composition, film, radio, or television program. The court held that the statute should obviously be extended to include videotapes, such as those distributed by the defendant.

Several actresses, including Carmen Electra, Alyssa Milano, Ami Dolenz, and Patricia Kotero (Apollonia), have pursued claims against various Internet hosts of pornographic sites displaying images of the actresses’ likenesses. At least one of these suits has resulted in a $238,000 judgment against a website owner. Several of the suits have settled under confidential terms. The right of publicity involves not only the questions of degree, commercial use, and newsworthiness, but the potential damage to the rightholder as well.

Due to the sheer size of the Internet, monitoring the Internet for right of publicity violations is difficult if not impossible. Monitoring is especially difficult if the violator is intent on limiting access to the material or disguising the material to avoid detection. An additional obstacle is that a SYSOP may not be liable for third party postings of which the SYSOP was not aware. Using the analogy to defamation, it is unlikely that SYSOPs would be liable for postings by other users. Therefore, SYSOPs have little incentive to police their users’ postings that may include a violation of publicity.

An additional problem is that many of the Internet postings of personas come about when individuals post them on their non-commercial sites. In these situations, the right of publicity would not be useful in attempting to enjoin such activity. A commercial or defamatory component must be proven to engender legal action.

One last problem is the absence of any uniform law governing the right of publicity. Because the Internet is accessible in every state, plaintiffs likely will be forum shopping into states granting the broadest protection. Clearly, uniform laws are needed to clarify the issues and address these special concerns unique to Cyberspace.

A Single Keystroke
Never before has such widespread dissemination of information been so simple and so inexpensive. Prior to the Internet, such dissemination could only be supported by a large commercial enterprise. The Internet has now made large-scale, non-commercial dissemination feasible. Although the right of publicity may be expanded in the future to restrict the non-commercial sharing of an individual’s likeness and persona, it is much more likely that celebrities will have to continue suffering the boundless royalty-free proliferation of their persona at the hands of their adoring, and not-so-adoring, fans.

A single keystroke can lead to a right of publicity and/or defamation lawsuit costing your company hundreds of thousands of dollars in lost time and money. Every company should consider putting preventative policies down in writing. Distributing these written policies to your employees will not only reduce the likelihood of your company ever being hauled into court for defamation or right of publicity violations, but may also reduce your liability and damages in the event such an unfortunate event actually occurs.

HT: Derek Mahr
Brett Trout

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