rights of publicity

This page looks at 'Rights of Publicity' (aka 'Rights of Celebrity').

It covers -

• Background to the notion of rights of personality and patterns in legislation
• Cases involving Bette Midler, Princess Di, Tom Waits and others
• Studies from North America and the EU

Personality Rights is 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. Works such as Huw Beverley-Smith's exemplary The Commercial Appropriation of Personality (Oxford: Oxford Uni Press 02) note that it has attracted attention in other jurisdictions regarding both intellectual property and privacy protection.

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 (aka the 'Elvis Law').

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. A 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. Washington state law indicates that

Every individual or personality, as the case may be, has a property right in the use of his or her name, voice, signature, photograph, or likeness, and such right shall be freely transferable, assignable, and licensable, in whole or in part ... The property right does not expire upon the death of the individual or personality, as the case may be. The right exists whether or not it was commercially exploited by the individual or the personality during the individual's or the personality's lifetime.

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.

     Cases

The New York Court of Appeals ruled in 1982, in Arrington v New York Times, that unauthorised publication of photograph of a non-celebrity did not violate privacy or publicity rights, commenting that publication is

the price every person must be prepared to pay for a society in which information and opinion flow freely.

That flow might be slower down south, where 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, extending to 70 years after death.

Oklahoma grants publicity rights in perpetuity. New York courts don't recognise the right at all beyond death. 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. A 2002 decision (PDF) by the 9th Circuit court upheld a decision in favour of Franklin Mint, finding that Princess Di failed to protect exploitation of her likeness in the US during her lifetime under the 1985 Celebrities Rights Act.

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

A global overview is provided by International Privacy, Publicity & Personality Laws (London: Butterworths 2001) edited by Michael Henry.

Beverley-Smith's Commercial Appropriation, noted above, provides lucid coverage of Australia, New Zealand and the United Kingdom. In Australia examinations of performers rights - centred on royalty schemes - by the Copyright Council and other bodies offer other perspectives.

For an overview of online issues and developments see Cristina Fernandez's brief 1998 paper The Right of Publicity on the Internet, Deborah Ezer's 2000 paper Celebrity Names As Web Site Addresses: Extending the Domain of Publicity Rights to the Internet and the 2002 Foreclosing on Fame: Exploring the Uncharted Boundaries of the Right of Publicity (PDF) by Melissa Jacoby & Diane Zimmerman.

For introductions to the US regimes see Jennifer Carpenter's 2001 paper Internet Publication: The Case for an Expanded Right of Publicity for Non-Celebrities, the brief 1998 article The Developing Right of Publicity by Robert Labate & Jonathan Jennings (PDF), 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 2000).

Jane Gaines' Contested Culture: The Image, the Voice, and the Law (Chapel Hill: Uni of North Carolina Press 1991) offers an historical perspective. Image Ethics: The Moral Rights of Subjects in Photographs, Film & Television (New York: Oxford Uni Press 1988) 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 1999) by Joseph Sax is also of significance.




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