The US Copyright Office recently considered a federal right of publicity law which, if enacted, would help to create a rule that can be applied more uniformly to alleged infringements.
What’s the News?
The Office set forth this position in a recently released Policy Report, “Authors, Attribution, and Integrity: Examining Moral Rights in the United States,” which addresses various issues surrounding moral rights. In the Report, the Office restates its concern with protecting the moral rights of authors and sets forth areas where these rights could be reinforced. Notably, the Office set forth considerations in connection with a possible federal law addressing the right of publicity which would serve to harmonize the current publicity law framework that exists in the United States.
What Are Moral Rights?
Moral rights are the rights of a creator of copyright protected work to receive credit for such work and, in some instances, to protect the integrity of the work to ensure that it properly represents the artist. While the specifics of moral rights vary internationally, the US requires an express waiver of moral rights in most instances — even in the instance of a license or assignment of a copyright-protected work. For example, in a situation where an artist licenses his or her painting or photograph to be used by a company on its packaging, that artist would still have moral rights in the work that require such artist to be identified as the creator. Given the importance of this right and the fact that it often becomes entangled with publicity rights, the Office explored ways to better utilize publicity rights, on the federal level, to assist in the protection of moral rights.
What Are Publicity Rights?
Publicity rights are an individual’s right to control the commercial use of his or her name, likeness, voice or other indicia of identity. The right is currently protected under the varying laws of a majority of US states, and the scope of the right varies from state-to-state. The ability to enforce the right is often hampered by variations in state laws, which differ — as noted by the Office — on issues including “the availability of post-mortem rights, the length of protection, whether such rights are transferable, the scope of protectable ‘personas,’ whether the personality right of non-famous individuals, and the proper scope of exceptions.” These variations make the reliance on these rights very complicated. The goal for any federal law would be to harmonize and remove the ambiguity that currently exists.
What Are the Issues with the Current System Governing Publicity Rights?
In the Report, the Office recognizes that the right of publicity is an important component to protect the moral rights of authors and performers and considers mechanisms for improving the current platform for protection.
The Report explains that Congress would need to address certain issues if it were to develop a federal privacy law. Specifically, the following items were flagged as issues that need to be addressed:
- Whether post-mortem rights are available;
- The length of protection;
- Whether the rights are transferrable;
- The scope of protectable “personas;” and
- Whether the personality right of non-famous individuals should be protected, and the scope of any exceptions.
These are issues that celebrities and their estates grapple with, since the current framework does not provide a consistent level of protection from state-to-state. Furthermore, other intellectual property rights should be considered – such as copyright and trademark. If the Office decided to pull publicity rights under its umbrella of protection, it may alleviate the current complication imposed by the varied protection.
While the Office does raise considerations, it did not draft language for a proposed law. Still, the Office does appear to favor a federal law that sets a floor for publicity rights as opposed to one that wholly preempts state law.
If treated as a floor, this would be consistent with the way that the Lanham Act and the Defend Trade Secrets Act is treated. Additionally, this “floor” would provide a baseline of rights for individuals but would not otherwise preempt the rights offered by the various states. This would also avoid disturbing current precedent and expectations deriving from current state law.
If Congress chooses to permit preemption, the noted inconsistencies between state laws would need to be considered in preparing a federal law. This would make the drafting activity more difficult, but would also be inconsistent with current federal IP protections as they relate to state protections.