| Nanotreatise | Right of Publicity |
According to blackletter law, the right of publicity provides to individuals the exclusive right to the commercial use of their name, image, likeness, and voice, as well as other indicia of identity. In reality, however, the right of publicity is not nearly so broad as this statement would suggest. If it were, paparazzi would be out of work and the credit reporting industry would be out of business. They’re not. Frustratingly for practitioners and students, the right of publicity is both legally complex and doctrinally disorganized.
The right exists as a matter of state law, which may be statutory, common law, or both. As a consequence, the right of publicity takes on various embodiments across the several jurisdictions where it is found, and the as-actually-enforced substantive scope of the right varies considerably. Nomenclature differs as well, with some courts calling the same or closely related legal entitlements “appropriation,” “commercial appropriation,” “misappropriation,” or the “right of privacy.”
Because of the largely unbounded nature of the right of publicity in its blackletter formulation, defenses to right-of-publicity suits are extremely important in getting to the true scope of the right. The First Amendment has been drafted to do much of the heavy lifting in defining the outer contours of the right. And because the right of publicity is a creature of state law, federal copyright preemption has also been used to stop many asserted cases. Other cases are tossed on more idiosyncratic grounds.
Only individual natural persons can have a persona protectable by the right of publicity—corporations, business associations, and animals have no such protectable interest with regard to their identity. Among natural persons, the right of publicity is most typically invoked by celebrities. In general, however, there is no bar to even very private persons bringing suit.
The right of publicity has its origins in concepts of privacy, and it is often said to have originated as one of the four branches of the tort of invasion of privacy, alongside false light, intrusion, and public disclosure of private facts. Although often still regarded as a tort, the right of publicity is sometimes considered a property right, and in some states, the right can persist post-mortem, devisable by will.
While the blackletter law does not do much to describe the types of cases that are actionable, the cases in which courts find for the plaintiff tend to fall into two categories: endorsements and merchandizing.
Endorsement-type cases—Courts tend to find an actionable violation of a person’s right of publicity where the plaintiff has been represented as making a commercial endorsement or has been made to appear in an advertisement in such a way that suggests endorsement, absent the plaintiff’s specific consent. An identifiable use of a person in advertising for a product or service or on product packaging is generally a violation. The right not to be portrayed as endorsing a commercial enterprise applies regardless of whether the person actually uses or recommends that product. Thus, it would be a violation for a boot manufacturer to distribute an advertisement with a photo identifiably depicting the plaintiff where the photo has been digitally altered to make it appear that the plaintiff was wearing the defendant’s brand of boots, when, in fact, the plaintiff was not actually wearing those boots. But it also would be a violation of the endorsement right to use in an advertisement an unaltered photo identifiably depicting a person wearing the defendant’s boots, even when that person actually wore the defendant’s boots.
Many of the best-known right-of-publicity cases can be described as endorsement-right cases. For instance, the case of Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) upheld a right-of-publicity cause of action for a magazine advertisement for Winston cigarettes. The court characterized the claim as concerning “the alleged misappropriation of [the plaintiff’s] name, likeness, personality, and endorsement.” Id. at 822 (italics added).
In terms of the dignitary and reputational interests it protects, the endorsement-type right shows a marked kinship with defamation, false light, common-law trademark, and the federal Lanham Act. (See note 1, below.)
Merchandizing—Right-of-publicity actions are routinely successful where a person’s name, likeness, or other indicia of identity is used in merchandizing—meaning the practice of placing a recognizable symbol (name, likeness, etc.) on a product such that product is essentially a vehicle for the symbol. This context is distinct from endorsement. In endorsement contexts, the customer is generally buying the product for its functional utility, the endorsement being a signal of the product’s quality, but not an essential attribute. With merchandizing, the consumer is generally buying the product—coffee mug, t-shirt, key chain, lunch box, etc.—because of the symbol and its message-carrying capacity. Frequently the merchandise is a means of displaying cultural affinity with some group for which the plaintiff’s persona is somehow a symbol. (See note 1, below.) The product’s functional utility and quality is secondary.
Examples of merchandizing-type right-of-publicity cases include Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001), a successful suit by the Three Stooges holding company against an artist who sold lithographs and t-shirts bearing his sketch of Larry, Curly, and Moe; and Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 296 S.E.2d 697 (Ga. 1982), a successful suit by the slain civil rights leader’s rights-holding organization against the seller of memorial busts.
Virtual impressment—Beyond the endorsement context and the merchandizing context, there is a third constellation of right-of-publicity cases—arising in at least some courts, albeit infrequently. To give these cases a label, we can call them “virtual impressment” cases. These are situations in which there is some kind of simulated or constructive enlistment of the plaintiff to provide a performance that, at least in the absence of enabling technology or a skilled impersonator, would require hiring the plaintiff. In other words, there are some cases in which courts tend to rule as if there is a right for a plaintiff to recover from a defendant who exploits their name, likeness, or voice in such a way that the plaintiff has been unwittingly employed to produce a performance that might otherwise require voluntarily supplied labor.
In terms of the interests it vindicates, the virtual-impressment–type action has kinship with unjust enrichment. It is notably not copyright- or patent-like, as the merchandizing entitlement is. And it is not tort-like, as the endorsement right is. Rather, the action for virtual impressment can be seen as the law imposing itself to reverse what is understood to be a windfall.
The most straightforward instance of this kind of right-of-publicity claim would be where a film celebrity is digitally modeled and inserted into a film, so that the actor’s performance is included within the film even though the actor was not on set and rendered no real-world performance. A virtual-impressment scenario that has been explored in the courts is the depiction of real persons in videogames. For example, in Hart v. Electronic Arts, Inc., 717 F.3d 141, 145 (3d Cir. 2013), a former college football player sued Electronic Arts (EA), the maker of the NCAA Football videogame series. The Third Circuit held that EA’s use of player identities for game avatars was not transformative enough for First Amendment protection. Id. at 147, 167–68. In another videogame case, No Doubt v. Activision Publishing, Inc., 122 Cal. Rptr. 3d 397 (Cal. Ct. App. 2011), members of the band No Doubt were successful with a right-of-publicity claim over a video game that allowed players to cause the No Doubt avatars to perform songs by No Doubt and other bands. Id. at 402, 411 (denying an anti-SLAPP motion to strike on right of publicity claim and specifically rejecting Activision’s asserted First Amendment defense). A lower-tech kind of virtual impressment situation involves people functioning as impersonators. In a New Jersey case, Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981), a preliminary injunction was issued against a show featuring an Elvis Presley impersonator performing Elvis songs.
Compared to other right-of-publicity cases, the virtual impressment cases are infrequent. And whether the law ought to recognize such a cause of action at all seems to be much more of an open question than it is with regard to merchandizing-entitlement or endorsement-right cases.
Notes:
Note 1: In fact, the action for false endorsement under the Lanham Act § 43(a)(1)(A) has considerable overlap, but the right of publicity’s endorsement/advertising liability is substantially broader.
Note 2: See Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L. Rev. 127, 128–29 (1993) (noting that “celebrities haul . . . semiotic freight” and that “there is a large and increasingly lucrative market for merchandise (T-shirts, posters, greeting cards, buttons, party favors, coffee mugs, school notebooks, dolls, and so on) bearing the names, faces, or other identifying characteristics of celebrities, living and dead”).