Publicity

Publicity


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

So you took some nice photos of Paris Hilton or Jennifer Aniston? Lucky you! Now you can probably print or display them for private, newsworthy and informative use. But if you want to sell, license, publish on the Internet, submit to microstock, or otherwise use the photos for commercial purposes, you’ll need a release beforehand.

Celebrities get paid big money for endorsements, so using someone’s image without permission for advertising or trade is a form of theft. This can even apply to dead people and fictional characters. Yes, stardom alone is worth money. In many states, identity and fame are a legal property right known as the “Right of Publicity.”

The Right of Publicity

[The Right of Publicity is]“the inherent right of every human being to control the commercial use of his or her identity.”
— Professor J. Thomas McCarthy, 1995, The Human Persona as Commercial Property: The Right of Publicity

The Right of Publicity prevents the unauthorized commercial use of an individual’s name, image, likeness, reputation, or other recognizable aspects of identity. Everyone has the exclusive right to use their persona for commercial promotion and, since fame commands money, this aspect of law mainly applies to celebrities.

The Right to Publicity is an outgrowth of the Right to Privacy, the fourth category of which is “appropriation of identity.” The term was first introduced in 1953:

“We think that, in addition to and independent of that right of privacy … a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture … For it is common knowledge that many prominent persons … far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements.”
— Judge Jerome Frank, Haelen v Topps, 1953

“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.”
— Restatement (Second) of Torts, 652C, American Law Institute.

Publicity is similar to copyright, where a person’s identity is the artwork, and emphasis is placed on the degree of commercial use.

Commerce

It’s generally OK to use a photograph of someone for fair use purposes such as personal viewing, news, education, information, satire, politics, and works of art.

[The unauthorized publication of a photo of a non-celebrity is] “the price every person must be prepared to pay for a society in which information and opinion flow freely.”
— Arrington v New York Times, 1982.

You’re generally free to use photos that you take of politicans for commentary purposes when such people have chosen to enter the public discussion.

“one who enters into the political arena essentially waives much of her rights of publicity and privacy.”
— Jeremy T. Marr, Constitutional Restraints on State Right of Publicity Laws.

But advertising and purposes of trade are different. The test is if the public is misled in a relevant way, creating a false or misleading impression that a celebrity recommends, approves, licenses, endorses, or has some assocation with certain products or services for sale.

“Courts apply a balancing test to determine whether the First Amendment preempts the right of publicity where the unauthorized use is commercial, such as in an advertisement or on actual merchandise.”
— Jeremy T. Marr, Constitutional Restraints on State Right of Publicity Laws

Personality rights have two types: privacy and publicity. Privacy is the right to be left alone and the cost is emotional, whereas publicity is the right to license your likeness and the cost is commercial value, similar to copyright and trademark.

“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. 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.”
— Mark Roesler, chairman and CEO of CMG Worldwide

Publicity Laws


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

In the U.S., there is no federal law concerning publicity. (The Federal Lanham Act protects a person’s identity from false advertising, and federal trademark law can apply if a person has made part of their identity a trademark). In fact, there’s only one publicity case that has reached the U.S. Supreme Court:

“[p]etitioner’s right of publicity … protection provided an economic incentive for him to make the investment required to produce a performance of interest to the public.”
— U.S. Supreme Court, Zacchini v. Scripps-Howard, 1977.

Instead, publicity laws are carved from case law (such as unfair competition) and state law. Only some states (lists: 1, 2) have publicity laws and these vary widely, creating a patchwork of differing and sometimes conflicting rules.

“As of March 2002, twenty-eight states had provided their citizens with a remedy for infringement of the right of publicity. Eleven states provide only common law protection; ten states provide only statutory protection; and seven states provide both. Courts in New York, Nebraska, and Puerto Rico have held that a common law right of publicity does not exist in those territories.”
— Jeremy T. Marr, Constitutional Restraints on State Right of Publicity Laws.

Of note, are the statutes of New York, California and Indiana.

New York

New York has America’s oldest publicity statute. Dating from 1903, New York’s Right of Privacy law states:

“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
New York Civil Rights Law Section 50.

[New York law] “consists of only two elements: the commercial use of a person’s name or photograph and the failure to procure the person’s written consent for such use.”
— Shamsky v. Garan, 1995.

Section 51 provides for injunction and exemplary damages “if the defendant … knowingly used” the identity. However, there is no statute in New York that covers publicity after death.

California

California has possibly America’s most admired publicity laws. Dating from 1971, Civil Code 3344 makes publicity a property right and prohibits:

“Use of Another’s Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.”

“Any person who knowingly uses another’s … photograph [such that the person is readily identifiable] … in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent … shall be liable for any damages sustained by the person or persons injured as a result thereof.”
— California Civil Code 3344 (a).

The law does not apply if the person is not “readily identifiable” or “is only incidental, and not essential, to the purpose of the publication in which it appears.” Plaintiffs have to demonstrate knowing use of the identity and a direct connection between the use and the commercial purpose. The California Celebrities Right Act (1985) includes the “Astaire Celebrity Image Protection Act” which grants post-mortem publicity rights for 75 years after death.

Indiana

Indiana has America’s — and probably the world’s — most far-reaching publicity laws. Enacted in 1994, the law is sweeping and broad, protecting “signature, photograph, gestures, distinctive appearances, and mannerisms” and giving publicity for 100 years after death.

Dead Celebrities

Yes, you read that right: even dead celebrities have a Right of Publicity. In fact, this is quite a signficant area with entire companies based on licensing, for money, the likeness of famous but expired people.

Major agencies include: Core Media Group (Elvis Presley), CMG Worldwide (Marilyn Monroe), and Roger Richman Agency.

If publicity is a property, then it can be transferred at death and owned or sold by the estate. Again, this varies by state: many states have no publicity after death; California extends for 75 years, Indiana ( CMG) for 100 years, and Tennessee (for Core Media Group/Elvis Presley) for as long as the right holder continually exploits the commercial value of the identity. This is often decided by which state the celebrity resided in prior to death. For example, the heirs of architect Frank Lloyd Wright have no publicity rights since he died in Wisconsin, where only living people have publicity rights.

In 2007, Shaw v CMG established that Marilyn Monroe’s estate (and licensing company, CMG) had no publicity rights since she was not a resident of Indiana (where the case was filed) but of California or New York, neither of which had publicity rights when she died in 1962.

“Just don’t give up trying to do what you really want to do. Where there is love and inspiration, I don’t think you can go wrong.”
— Ella Fitzgerald

Expiration of Publicity Rights

In many states (including California and New Jersey), likely 50 years. See Einstein case, Hebrew University of Jerusalem v General Motors, Central District of California, Oct 15, 2012.

“Surely the personal interest that is at stake [in the right of publicity] becomes attenuated after the personality dies. [Consequently a] maximum 50-year postmortem duration here would be a reasonable middle ground that is long enough for a deceased celebrity’s heirs to take advantage of and reap the benefit of the personal aspects of the right.”
— Hebrew University of Jerusalem v. General Motors LLC, 202 WL 4868003 (C.D. Cal. Oct. 15, 2012)

Notable cases

California right of publicity:Commercial use of name, photograph, and likeness under both the common law and California section 3344Clint Eastwood v. Superior Court, 149 Cal.App.3d 409, 416, 198 Cal.Rptr. 342 (1983)

“any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner .. for purposes of advertising .. without such person’s prior consent .. shall be liable for any damages sustained by the person.”
California Civil Code § 3344(a).

Albert Einstein

Common law right of publicity, 2012. New Jersey has a common law right of privacy but it does not extend past 50 years after death.
Hebrew Univ. of Jerusalem v. Gen. Motors LLC, 903 F. Supp. 2d 932, 933 n.4 (C.D. Cal. 2012)

Copyright of characters

Batmobile: DC Comics has copyright protection on the “automotive character” known as the Batmobile. Sept 23, 2015

“As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’ Here, we conclude that the Batmobile character is the property of DC, and Towle infringed upon DC’s property rights when he produced unauthorized derivative works of the Batmobile as it appeared in the 1966 television show and the 1989 motion picture.”
DC Comics v Towle, 9th Circuit, Sept 23, 2015

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