The essentials of publicity rights in USA

Sources of law

Is the right of publicity recognised?

Yes. While there is no federal (ie, national) law governing the right of publicity, it has been determined by the United States Supreme Court that the First Amendment (freedom of speech) does not prevent state law from providing a claim for commercial appropriation of a person’s identity. Wherever it has been asserted, the states have permitted some version of it. Consequently, at a minimum, the use of a person’s name or image virtually anywhere in the United States, at least in advertising, can be assumed to give rise to a claim.

What are the principal legal sources for the right of publicity?

Most states have recognised a claim for commercial appropriation of an individual’s identity as a matter of common law. Many states have enacted civil statutes defining the private right of action. New York was the first state to recognise the claim in 1903, enacting statutory protection after the courts had concluded that there was no claim under common law.

The New York statute provides for a private right of action for of a person’s name, picture, portrait or voice for purposes of advertising or trade without written authorisation and specifies that the writing must be signed by the parent or guardian for persons under the age of 18. See section 51 of the New York Civil Rights Law. There also is a companion criminal statute in New York, but it has never been enforced.

Other states have similar, though not necessarily identical, statutory or common law protections, or both.

How is the right enforced? Which courts have jurisdiction?

The right is usually enforced by civil lawsuits brought in state court, but can also be brought in federal court based on the residency of the parties being from different states and otherwise meeting the requirements for what is called ‘diversity’ jurisdiction. There also is the possibility of bringing a claim in federal court under the Lanham Act (as described in question 4).

Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?

Federal law provides a claim for creating a likelihood of confusion as to the nature of the association (authorisation and endorsement) of a person with a product or service. See section 43(a) (1)(A) of the Lanham Act. This claim is frequently included with a claim of violation of the right of publicity, because the unauthorised use of a person’s identity in advertising is likely to support such a claim. Unlike a right of publicity claim, a claim under the Lanham Act requires proof that people will likely be confused by the use (see section 2(c)). The Lanham Act also prohibits unauthorised registration as a trademark of a living person’s name, portrait, or signature. Similarly, unauthorised registration of a living person’s name as an internet domain name can be challenged under the Anticybersquatting Consumer Protection Act.

Existence of right

What aspects of a person’s identity are protectable under the right of publicity?

While the specific protections vary somewhat in different states, the right of publicity may protect some or all of the following aspects of a person’s identity:

• Name: which includes a first name or a nickname, assumed name, stage name and anything that is sufficient to identify a particular person. A release from a person who bears the name will not prevent a claim from a famous person with the same name, at least where the context suggests the famous person.
• Picture: including any portion of a person that is sufficient for that person to be recognised.
• Portrait: including a cartoon or illustration.
• Likeness: including a lookalike or actual person who through make-up is made to appear like the famous person, or even an inanimate object, such as a robot that by appearance or even context conjures up a celebrity.
• Voice: which may include a voice impersonation.
• Signature: even the possibility that it is someone famous may be able to convince a court that the context of an advertisement implicates their identity.
• Gestures and mannerisms: mome states include protection for a gesture that a celebrity made famous.
• Persona: in a much-criticised case, the Ninth Circuit Court of Appeals, in a two-to-one decision, reversed a trial judge who dismissed a claim brought by Vanna White, who turned the letters on a famous television show called Wheel of Fortune based on an advertisement that depicted the show 25 years in the future with a robot as the letter turner. The appellate court held that a jury could conclude that the robot evoked the persona of Vanna White, who at the time fulfilled that role on the show.

Do individuals need to commercialise their identity to have a protectable right of publicity?

Not in most states. The right to prevent commercial appropriation of one’s identity began as a privacy right of ordinary (not famous) people. The mental anguish or personal discomfort arising from inclusion in something commercial is sufficient in most states to support a claim. Some states limit protection to individuals who have commercially exploited their right and in some states that provide for protection of the right of publicity after death (see question 9); the rights of heirs of a deceased individual may be limited to where the individual had exploited the right during his or her lifetime.

May a foreign citizen protect a right of publicity under the law of your jurisdiction?

Yes. Many state statutes include use in that state’s jurisdiction and consequently provide an argument for a foreign citizen to assert a claim. However, whether that person has a right of publicity at all may be determined by the law of their domicile. There is some authority, nevertheless, that even if the individual’s domicile does not recognise a personal right of privacy, if there has been a licensing to exploit the person’s name or likeness in the US it creates a protectable property right in the US.

Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?

No. There is no requirement of registration. However, it is important to note that some states, including California, Nevada, Oklahoma and Texas, provide for registration and require registration to assert post-mortem rights. Registration is with the Secretary of State (as with corporate registration to create a corporation to do business in the state) and entails filing a form and making a modest payment.

Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?

States have taken different positions on whether the right of publicity may continue after death. Initially as a privacy right, it was limited to living persons who would object to being used commercially. As celebrity rights became more valuable, the property right in licensing a person’s celebrity came to be recognised. Most famously, Tennessee, the home state of Elvis Presley, passed a statute that would protect the extremely valuable rights to everything connected with Elvis. The statute provides for an initial 10-year period of use, but as long as the rights are commercially exploited there is no end until two years of non-use. Most states limit the continuation of post-mortem rights to a set term of years ranging from 20 years (Virginia) to 100 years (Indiana). California, by statute, is 70 years. New York has yet to recognise any post-mortem rights for the estates of New York residents, although legislation to establish a post-mortem right is under serious consideration. Few states (eg, Utah) have provided that the right had to be exercised during the individual’s lifetime to extend after death.