Publicity Rights: Understanding The Law And Its Applications

The right of publicity is an intellectual property right that protects against the misappropriation of a person's name, likeness, or other aspects of their identity for commercial benefit without their consent. In the United States, this right is guaranteed at the state level, with over half of the states recognising it either through statute, common law, or a combination of both. The right of publicity is distinct from the right to privacy, as it is primarily concerned with the economic exploitation of one's identity. This right can be enforced through legal action and may extend beyond an individual's lifetime, depending on the jurisdiction.

Right of publicity vs right to privacy

The right of publicity and the right to privacy are two distinct legal concepts that relate to an individual's control over their image, likeness, and personal information. While both rights aim to protect individuals, there are several key differences between them in terms of scope, nature, and enforcement.

The right to privacy is often considered an innate and inherent right that starts at birth. It grants individuals the right to be left alone and protects their personal rights against emotional distress. There are four recognised types of invasions of privacy: intrusion, public disclosure of private facts, false light, and appropriation. Intrusion refers to invading an individual's private affairs or seclusion, while public disclosure involves sharing private information that a reasonable person would find objectionable. False light pertains to publicity that places an individual in a false context, and appropriation involves using an individual's name or likeness for commercial gain without their consent.

On the other hand, the right of publicity is a property right that must be earned or acquired by creating economic value in one's name, image, or likeness. This right grants individuals control over their name, face, image, or voice for commercial purposes and is often associated with celebrities. The right of publicity is designed to protect the commercial value of an individual's persona and prevent unauthorised exploitation. It encompasses five categories: exclusive performance services, adaptation rights, personality products, endorsement, and protection against reputation misuse.

The distinction between the two rights is particularly evident in how they are created and enforced. The right to privacy is often traced to an 1890 article in the Harvard Law Review, while the right of publicity was coined by Federal Appeals Court Judge Jerome N. Frank in 1953. The right of publicity is primarily enforced through state common law or state statutes, with about half of the states in the US recognising this right in some form. In contrast, the right to privacy is often protected under broader constitutional or common law rights.

In summary, while both rights aim to protect individuals, the right to privacy focuses on safeguarding personal rights and private information, while the right of publicity is concerned with the commercial exploitation of an individual's identity and is more limited in its scope and recognition.

Commercial use of identity

The right of publicity is an intellectual property right that protects against the misappropriation of a person's name, likeness, or other indicia of personal identity for commercial benefit. It is the right of an individual to control the commercial use and exploitation of their identity. This includes their name, image, likeness, or other unequivocal identifiers. The right of publicity is guaranteed in the United States, where it is based on state-level law rather than federal law.

The right of publicity is distinct from the right to privacy, which is the right to be left alone and not have one's personality represented publicly without permission. While the right to privacy is concerned with protecting personal information and private facts, the right of publicity focuses on the commercial use of a person's identity.

In the United States, there is no federal statute or case law that explicitly recognizes the right of publicity. However, a majority of states recognize this right through statutes, common law, or a combination of both. The specifics of the right of publicity can vary from state to state, including how long the right lasts after an individual's death and whether it is inheritable or assignable.

The right of publicity serves as a legal tool to recognize and protect an individual's financial interest in their identity. It allows individuals to control the economic use and exploitation of their identity, such as through licensing or trademark registration. Unauthorized commercial use of a protected aspect of a person's identity is generally considered a violation of their right of publicity. However, there are certain defences against unauthorized use, such as consent, newsworthiness, and artistic or creative works.

The right of publicity is an evolving area of law that continues to develop and gain recognition across different jurisdictions. It plays a crucial role in protecting individuals' rights to control the commercial use of their identity.

Consent and newsworthiness

The right of publicity is an intellectual property right that protects against the misappropriation of a person's name, likeness, or other indicia of personal identity for commercial benefit without the individual's consent. While the right of publicity provides the individual with a property right in their identity, the right of privacy protects an individual from the emotional anguish resulting from the publication of private facts that are embarrassing, intimate, or portray someone in a false light.

The right of publicity is generally defined as an individual's right to control and profit from the commercial use of their name, likeness, and persona. This includes the exclusive right to license one's identity for commercial purposes, preventing others from unauthorized commercial use. The right of publicity is derived from the right to privacy and provides individuals with a right to control how their identity is commercialized by third parties.

Consent plays a crucial role in the right of publicity. Individuals must provide consent for the commercial use of their identity, including their name, image, likeness, voice, signature, photograph, or other unique identifiers. This consent is typically obtained through consent or release agreements, where individuals grant permission for the use of their identity in exchange for compensation.

However, the right of publicity must be balanced with newsworthiness and freedom of speech considerations. The First Amendment provides a hierarchy of protection under the newsworthiness exception, depending on how an individual's identity is being used. The greatest protection is afforded to news, followed by lesser protection for entertainment and fiction, and the least protection for advertising.

To determine if the use of an individual's identity falls under the newsworthiness exception, two critical questions must be answered:

• Is the unauthorized use of an individual's identity considered news that warrants First Amendment protection?
• Is there a reasonable connection between the use of the individual's identity and the news being conveyed?

If a reasonable relationship exists between the person's identity and the subject of the story, the individual's property rights in the right of publicity must yield to the First Amendment. Additionally, unauthorized biographies and creative works that clearly state their fictional nature are protected by the First Amendment, as they contribute to public discussion and legitimate commentary on the lives of public figures.

In summary, while consent is essential for the commercial use of an individual's identity under the right of publicity, there are newsworthiness and freedom of speech exceptions that prioritize the public's right to know about matters of legitimate public concern.

Artistic or creative works

The right of publicity is an intellectual property right that protects against the misappropriation of a person's name, likeness, or other aspects of their identity for commercial benefit. This right is particularly relevant to celebrities, as their names and images are often used to sell products or services. However, it is important to note that the right of publicity extends to all individuals, regardless of their level of fame.

In the context of artistic or creative works, the right of publicity can apply in several ways. For example, if an artist creates a painting or drawing depicting a person, they may need to obtain a model release from the subject to avoid potential legal issues. This is because the right of publicity prohibits the commercial use of a person's likeness without their consent. The definition of "commercial use" can vary depending on the jurisdiction, but it generally refers to using someone's likeness to sell or promote a product or service.

In the United States, the right of publicity is determined by state law, and the specifics can vary significantly from state to state. For example, in New York, the right of publicity is written into the state Civil Rights statute, which prohibits the use of a person's name, portrait, picture, or voice for advertising or trade purposes without their written consent. On the other hand, California recognizes the right of publicity for both living and deceased individuals, allowing the heirs or survivors of a deceased person to control their right of publicity for 50 years after their death.

It is worth noting that there are some exceptions to the right of publicity, such as the newsworthiness exception, which allows for the use of a person's likeness in news reporting, as well as for entertainment and amusement purposes. Additionally, some states, like California and New York, recognize a fine art exception, which exempts original works of art from the right of publicity. However, this exception may only apply to unique works and not mass-produced reproductions.

To avoid potential legal issues, artists should be mindful of the right of publicity and obtain the necessary permissions or releases before creating or selling works that depict identifiable individuals. Failure to do so could result in legal consequences, including injunctions and monetary damages.

Right of publicity after death

The right of publicity is an intellectual property right that protects against the misappropriation of a person's identity for commercial gain without their consent. This includes the use of a person's name, likeness, nickname, pseudonym, voice, signature, or photograph. In the United States, there is no federal statute or case law that recognizes the right of publicity. However, a majority of individual states have their own laws that recognize this right to varying degrees.

The right of publicity after death, also known as post-mortem personality rights, varies significantly among the states. Some states allow the right to extend beyond death, while others do not recognize a post-mortem right of publicity at all. For example, in the 2009 case of James "Jim" Brown v. Electronic Arts, Inc., the court determined that the First Amendment protected the unauthorized use of a trademarked image in an artistic work when the mark had artistic relevance and did not explicitly mislead as to the source or content of the work. In contrast, Indiana has one of the stronger right of publicity statutes, providing recognition of the right for 100 years after death and protecting various aspects of a person's identity, including signature, photograph, gestures, distinctive appearances, and mannerisms.

The duration of the right of publicity after death varies across state laws. For instance, under California's statute, post-mortem publicity rights survive for 70 years after the death of the individual, while under New York law, the right survives for 40 years. Some state laws, such as California's, apply retroactively to individuals who died before the laws were enacted, while others, like Illinois, only apply to individuals who died on or after the effective date of the law. Additionally, some states, including New York and Ohio, require that the deceased individual was domiciled or resided in the state at the time of death for the post-mortem publicity rights to apply.

New York is the first and currently the only state to enact a law that expressly addresses the use of digital replicas of deceased individuals. This law recognizes a post-mortem right of publicity for "deceased performers" who were regularly engaged in acting, singing, dancing, or playing a musical instrument for gain or livelihood. The law creates a right of action for damages for the unauthorized use of a deceased performer's digital replica in certain circumstances, such as in a scripted audiovisual work or live performance of a musical work, when it is likely to deceive the public.

The right of publicity after death is a complex and evolving area of law that differs across jurisdictions. It is important to note that the First Amendment provides robust protection for expressive works, including documentary films, which may limit the application of right-of-publicity laws for both living and deceased individuals.

Frequently asked questions