| Nanotreatise | Right of Publicity |
More like this:
Intellectual Property Teaching and Learning Materials
The right of publicity is what allows celebrities to get paid handsomely for endorsing products, appearing in advertisements, and selling t-shirts and other merchandise featuring their name and face. And the right of publicity is the crucial enabling legal principle for how college athletes can make money from their “N.I.L.” – name, image, likeness.
The classic blackletter formulation of the right of publicity, despite its habitual recital by courts, is overbroad and is not very helpful in explaining what is necessary for a plaintiff to succeed with a right of publicity claim. 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 suggests. 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. Yet, as this brief overview will explain, cases concerning the right of publicity tend to fall into predictable patterns. Understanding the three categories of successful right-of-publicity cases – listed and described in the “Three Categories” section below – goes a long way toward helping one understand the law in this area. (See note 1, below.)
Where It Comes From and What It’s Called
The right of publicity in the United States 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.” The most well-known name for the concept ultimately arose from college athletics – where a flurry of changes first taking flight in the late 2010s freed college athletes to begin making money from deals over their “name, image, and likeness.” That phrase, reduced to three letters – NIL – soon became as common in the vocabulary of the sports media as references to baseball statistics like OBP and ERA.
The Importance of Defenses in Right of Publicity Litigation
Because of the largely unbounded nature of the right of publicity’s blackletter formulation, defenses to right-of-publicity suits are an extremely important tool used by courts to cut the right of publicity down to size. The First Amendment is habitually recruited to do much of the heavy lifting in defining the outer contours of the right of publicity. And because the right of publicity is a creature of state law, federal copyright preemption has been used to stop many asserted cases. And courts sometimes trim away the unwanted extent of the blackletter law by using more idiosyncratic means, such as making highly selective use of facts or precedent.
A Right of Persons and Privacy
Only individual natural persons can have a persona protectable by the right of publicity. Corporations, business associations, and animals have no protectable interest with regard to their identity as far as the right of publicity is concerned.
Among natural persons, celebrities tend to be thought of the archetypal plaintiffs in right of publicity actions. In general, however, there is no bar to even very private persons bringing suit.
The right of publicity has its origins in tort-law concepts of privacy. Indeed, the right of publicity 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. But the publicity/privacy interconnection is yet more fundamental. A scholarly review of the history of the right of publicity – from its origins in the late 1800s – indicates that, tort law’s original right of privacy was indeed the same thing as the original, heavily privacy-focused right of publicity. That is, the civilly actionable “right of privacy” was concerned with giving people a legal means to limit their publicity – that is, the use of their name and image in public forums. (See note 2.) But as the legal doctrine evolved, it moved further away from being a tort-rooted means of protecting an individual’s privacy and increasingly was seen as an intellectual-property-type right that facilitates the transfer of legal rights over a person’s identity over to third-party commercial enterprises. (Again, see note 2.)
Although often still regarded as a tort, the right of publicity is now routinely listed as a form of intellectual property. And in keeping with its treatment as a property right, various jurisdictions have made provisions for the alienability of the right of publicity and for its post-mortem persistence, such that it can be devisable by will.
Three Categories of Successful Right of Publicity Claims
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 mostly fall into two categories: endorsements/advertising and merchandizing. In more recent years, a less-well-defined third category has taken on increasing prominence: virtual-impressment-type cases.
Endorsement/advertising 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, absent the plaintiff’s specific consent. (See note 1 at pp. 928-932.) 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 did wear 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 where the ad depicted a racecar with livery that viewers would associate with the plaintiff. 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 has some correspondence with defamation, false light, common-law trademark, and the federal Lanham Act. (See note 3.)
Merchandizing-type cases – 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 the product is essentially a vehicle for that symbol. (See note 1 at pp. 932-934.) 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 the tie to a particular person’s name or image is not an essential attribute of the product. With merchandizing, the consumer is generally buying the product in substantial part because the product functions as a vessel for carrying and displaying some symbol, i.e., an identifiable representation of some particular person. Frequently the merchandise is a means of displaying cultural affinity with some cultural group or community for which the plaintiff’s persona is somehow a symbol. (See note 4.) The product’s functional utility and quality is secondary in terms of the product’s value.
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 illustration 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 cases – 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. (See note 1 at pp. 934-938.) It’s not obvious what to call this newer and rarer variety of cases, but “virtual impressment” can be a useful label. 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 some performance.
In terms of the interests it vindicates, the virtual-impressment–type action has some 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 might be understood 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 likely 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 the subject of substantial litigation 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 is an issue for celebrity impersonators or “tribute artists,” where a real performer engages in an impersonation of someone else for entertainment purposes. 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: See Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw. Univ. L. Rev. 891 (2017). Regarding the three categories of successful claims, see in particular pp. 928-938.
Note 2: See Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018). Regarding the right of publicity’s right-of-privacy origins, see in particular pp. 11 et seq.
Note 3: 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 4: 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”).