rights of publicity

This page looks at 'rights of publicity' - an area of intellectual property that has gained most attention in the US for protection of pop culture idols such as Elvis Presley and that poses interesting challenges for internet publishing.

A range of US states have devised legislation aimed at preventing unauthorised commercial use of an individual's name or likeness, giving that person (or their estate) an exclusive right to license the use of the identity for commercial purposes. Celebrities, with some success, have sought to use such legislation or court rulings about 'passing off' to provide protection from media intrusions. Australian courts appear to be tentatively considering such remedies.

     background

Performing artists and sports figures traditionally have not had much copyright protection - and none at all if the performance was not electronically recorded or otherwise 'fixed'. Over the past fifty years there have been two responses.

At a national and international level performers - along with publishers such as record companies and broadcasters - have sought to strengthen 'neighbouring rights' (the droits voisins) under copyright law. A major example is the the Rome Convention of 1960 (not yet ratified by the US), highlighted earlier in this Guide.

Performers - and other celebrities - have concurrently sought to control commercial exploitation of their persona through existing trade practices law (eg restrictions on false claims that a performer has endorsed a particular product) or special 'rights of publicity' legislation such as Tennessee's 1984 Personal Rights Protection Act.

The first category can be traced to debate following the landmark 1893 Warren & Brandeis paper on privacy, with a 1905 ruling by the Georgia Supreme Court - in Pavesich v. New England Life Insurance over unauthorised use by the insurer of Mr Pavesich's photo in its advertising - generally regarded as the initial judicial judgment. New York state law, for example, enacted soon after provided that

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained [from the person] ... may maintain an equitable action ... and may also sue and recover damages for any injuries sustained by reason of such use

Special 'rights' legislation seeks to prevent unauthorised commercial use of an individual's name, likeness (including silhouette, voice or signature) or other recognisable aspect of that person's persona. The individual - and in some instances the individual's heirs - gain an exclusive right to license use of the persona for commercial purposes. In the US the notion dates from a judge's broad statement in Haelen Laboratories v Topps Chewing Gum, 1953 litigation involving baseball cards.

In the US around 16 states have enacted such legislation, most in the past decade after a series of court decisions in favour of celebrities such as Jacqueline Onassis, the Kennedy family, the heirs of Bela Lugosi and Martin Luther King, Dustin Hoffman, Bette Midler and 'The King'. They include California, Tennessee, Rhode Island, Florida, Illinois, New York, Indiana, Virginia, Massachusetts, Texas, Kentucky, Nebraska, Oklahoma, Nevada, Utah and Wisconsin. Some of the statutes protect the dead, others do not. In some states the restrictions on misappropriation of privacy rights and publicity rights relate only to advertising.

Most litigation involves celebrities, as it is usually difficult for an ordinary person to demonstrate that use of his/her likeness has commercial value and thus requires compensation for commercial misappropriation of the persona. Celebrities are also more likely to have the wherewithal for hiring legal experts.

Proponents of the 'right' emphasise that it is consistent with shibboleths such as the US First Amendment, does not restrict legitimate media coverage or prevent parody. In practice, there is considerable variation across the US.

The Tennessee law provides protection in perpetuity and has been used successfully by the Presley estate in a range of cases against nightclubs, merchandisers and others. The 1979 Lugosi v Universal Pictures decision by the California Supreme Court held that the Lugosi name and likeness could not pass to the actor’s heirs: the rights of publicity died with Lugosi. California subsequently enacted a Celebrities Rights Act in 1985. A landmark 1982 decision by the Georgia Supreme Court held that Martin Luther King Jr's right of publicity descended to his heirs. In the preceding year a New Jersey court held that an Elvis impersonator violated the rights of Elvis Presley Enterprises. In 1985 Woody Allen sought damages over advertising featuring a lookalike. In 1988 the US Court of Appeals awarded Bette Midler US$400,000 damages after an advertising agency for Ford used a lookalike to perform "Do You Want To Dance" to "sound as much as possible like the Bette Midler record." The 1992 Waits v Frito-Lay case involved action by singer Tom Waits for "voice misappropriation and false endorsement" regarding a radio commercial that imitated his "raspy singing voice."

More recently, in the 1998 Michaels v. Internet Entertainment Group case, pop personalities Pamela Anderson Lee and Bret Michaels sought to restrict dissemination on the web of video of their more intimate moments. In what is likely to be another landmark, a 2001 decision by California's Supreme Court in Comedy III Productions v Gary Saderup concerned cartoons.

Rights of publicity legislation has been used in the US in dealing with commercial sites and with non-commercial fan/tribute sites. The newness of much of the legislation means that there is uncertainty about First Amendment defenses and application to domain names. Free speech was for example used in a successful appeal against an award of US$3 million to Dustin Hoffman over a composite photo in LA Weekly Magazine. There is also uncertainty about application of the legislation outside the US.

     studies

There are no major studies for Australia, New Zealand and the United Kingdom, although examinations of performers rights - centred on royalty schemes - by the Copyright Council and other bodies offer some perspectives. One example is

For an overview of online issues and developments see Cristina Fernandez's brief 1998 paper The Right of Publicity on the Internet and Deborah Ezer's 2000 paper Celebrity Names As Web Site Addresses: Extending the Domain of Publicity Rights to the Internet.

For an overview of the US regimes see the brief 1998 article (PDF) The Developing Right of Publicity by Robert Labate & Jonathan Jennings, the 1996 article The Right Of Publicity: Going to the Dogs? by Russell Frackman & Tammy Bloomfield and Douglas Baird's thoughtful 2001 paper Does Bogart Still Get Scale? Rights of Publicity in the Digital Age (PDF). Penny Manship's paper Oh what a Tangled Web: The Entanglement of Fan Web Sites and the Right of Publicity considers the Californian scene. There is an in-depth examination of US law in J Thomas McCarthy's The Rights of Publicity & Privacy (Eagan: West Group 00).

Jane Gaines' Contested Culture: The Image, the Voice, and the Law (Chapel Hill: Uni of North Carolina Press 91) offers an historical perspective. Image Ethics: The Moral Rights of Subjects in Photographs, Film & Television (New York: Oxford Uni Press 88) edited by Larry Gross & John Stuart considers the intersection between privacy, free speech and intellectual property. Playing Darts with a Rembrandt: Public & Private Rights in Cultural Treasures (Ann Arbor: Uni of Michigan Press 99) by Joseph Sax is also of significance.




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