Vanna White successfully sued Samsung for placing a dressed up, metallic robot next to a Wheel of Fortune style letter board. The Hebrew University of Jerusalem sued General Motors based on an advertisement picturing Albert Einstein’s head connected to a shirtless, muscular body with baggy jeans and white briefs. A former starting quarterback for Rutgers University sued EA Sports over his characterization and depiction in a famous video game. Johnny Carson sued a portable toilet maker for using the phrase, “Here’s Johnny.”
What do all of these lawsuits have in common? The cause of action for each of the above disputes revolved around what is known as a “right of publicity.” The right of publicity refers to the right that an individual has to exploit the economic value of that person’s name, likeness, image, signature, performance, and other aspects of personality.
Several famous individuals have filed lawsuits under a right of publicity cause of action. One of the more well-known and interesting cases came from the Sixth Circuit and involved the use of the late comedian Johnny Carson's likeness. In the case, the defendant was an owner and operator of a Michigan company that sold portable toilets called "Here's Johnny," named after Carson's famous slogan. Furthermore, the portable toilets were advertised as "The world's most famous commodian," in a further attempt to evoke thoughts of the former Tonight Show host. The Court ultimately found that the use of Carson's catchphrase was sufficient to show commercial appropriation of his likeness and a violation of his publicity rights under Michigan law.
Often rights of publicity revolve around the use of the name or likeness of a famous individual, but an individual does not need to be a public figure or a celebrity to enforce the right. If anyone's image is taken for a commercial use without consent, then there could be a claim for infringing the right of publicity.
One recent right of publicity dispute involved a teenager whose image was used by Virgin Mobile in an advertisement. An image of the teenage girl was posted on the photo-sharing site Flickr. Virgin Mobile used the photo in one of its advertisements for its wireless phone service and included the text “Dump your pen friend,” and “Free text Virgin to Virgin.” Even though the image was licensed under a Creative Commons license, the girl clearly did not license her image to Virgin Mobile for a commercial use. Based on this case and numerous others, a right of publicity and privacy is distinct and distinguishable from a copyright in an image.
Just over half of the states in the United States recognize some form of a right of publicity, either at common law or by statute. The common law right of publicity comes from the common law right of privacy, including the tort of appropriation. Additionally, right of publicity policy is affected by unfair competition law and even the First Amendment. Accordingly, many states have developed case law to interpret the common law right of publicity.
In contrast with states that rely on the common law right of publicity to govern appropriation of an individual’s name, identity, or likeness, the state of Indiana passed a statute that expressly codifies and defines the right. The statute provides uniformity in interpretation for the courts applying Indiana law. Moreover, Indiana provides the most robust and expansive definition of the right of publicity and privacy rights in the United States.
Indiana law defines the right of privacy as a property right, much the same as in the common law right of publicity. However, Indiana law also explicitly states that the right is descendible (meaning it can pass to the individual’s heirs) and that the right survives the death of the individual plus 100 years. Further, Indiana goes beyond protecting simply for one's likeness and provides protection for one's signature, gestures, and mannerisms.
Most importantly to individuals with valuable rights of publicity, the Indiana statute also contains a choice of law provision that permits a plaintiff to bring suit in Indiana so long as the infringing act or event took place in Indiana. The Indiana statute also provides that it is immaterial whether the individual whose likeness is being appropriated is domiciled or residing in Indiana. Furthermore, the statute grants jurisdiction to Indiana courts over any defendant who causes infringing images to be disseminated in the state. Given the expansive choice of law provision and the prevalence of the internet, it is entirely possible that a person in any state in the country could end up in an Indiana court because infringing material found its way to a computer in Indiana.
Given the expansive rights of publicity in Indiana and the powerful choice of law provision, many individuals seek to file suit in Indiana. This forum shopping can result in an undue burden to defendants who are forced to defend suits in a jurisdiction in which they have limited to minimal connection.
Moreover, the right of publicity can also have wide-reaching implications in all aspects of the legal and business planning for an individual. For example, the value of one’s right of publicity is becoming an important part of tax planning for individuals whose public persona has a high value upon his or her death. Recently, the public discovered that the actor Robin Williams donated his right of publicity to a charitable organization at the time of his death. Consequently, no one may use the likeness of Robin Williams without the express permission of the charitable organization. By way of example, the limitation includes creating a hologram of Mr. Williams doing standup comedy, or even using visual effects to digitally insert him into a movie.
Many experts believe this type of estate planning was triggered by the current dispute between Michael Jackson and the Internal Revenue Service (IRS) over the value of Michael Jackson’s estate at the time of his death. Of course, the value of an estate is subject to the federal estate tax. However, one of the most valuable assets in Michael Jackson’s estate was his right of publicity. The IRS argued that Michael Jackson’s right of publicity alone was worth $400 million at the time of his death. In contrast, Michael Jackson’s estate valued his right of publicity under $10,000. Michael Jackson’s family and heirs now are fighting an uphill battle against the IRS by arguing about the value of Michael Jackson’s image and likeness. By donating his right of publicity to a charity, Robin Williams avoided paying estate taxes on the value of his right of publicity. Additionally, his estate could also claim a deduction for the full value of his right of publicity because it was donated to a 501(c)(3) organization.
The law governing an individual’s right of publicity is evolving and changing at a rapid pace. Some commentators argue for a federal statute to provide uniformity, while others suggest a model act that states can adopt. Regardless of the current state of the law, an understanding of publicity rights is important.