Right of Publicity in a Nutshell
Author:
Murray, Michael D.
Edition:
2nd
Copyright Date:
2022
20 chapters
have results for Right of Publicity in a Nutshell
Introduction 14 results (showing 5 best matches)
- The purpose of this Nutshell guide is to orient and acclimate you to the structure, public policy, issues, and vocabulary of the area of right of publicity law. Lawyers practicing in the modern world will observe that the economic power of celebrities in the arts, entertainment, and sports fields, and the symbolic, expressive, and monetary value of celebrities’ names, images, and personas are implicated in many areas of business and commerce. Thus, the principle target audience of this Nutshell guide is attorneys and business people working in the arts, entertainment, advertising, marketing, news media, and sports promotion and commerce, and law students taking a course in right of publicity law, entertainment law, art law, media law, or an intellectual property survey course.
- The right of publicity encompasses the legal protection of a celebrity’s control over his or her personality rights in the celebrity’s name, image, or persona. Publicity law has become one of the fastest growing and rapidly developing areas of law in the United States. Of the fifty states and the District of Columbia, only Alaska, North Dakota, and Wyoming have never recognized by statute or in common law a person’s right to be free from the unauthorized and unconsented exploitation of their name, image, likeness, or persona under a theory of privacy or publicity law. From its humble origins as a simple privacy tort, right of publicity has grown into a major area of intellectual property law.
- As a lawyer or law student, or a person whose life or business involves the use of celebrities’ and athletes’ images and personas, this guide will assist you in understanding the legal issues that arise in right of publicity law, the laws and legal standards that apply to answer the issues, and the information needed to make predictions about probable outcomes of right of publicity disputes. This guide is written with the assumption that you most likely do not have any prior knowledge about American intellectual property law or right of publicity law in particular. This is an open guide for the curious.
- Right of publicity law also is a worthy area of study for 21st century lawyers and law students because the law is in flux. Even the black letter principles of this area are only a few decades old, and the law is growing and developing at a breakneck pace. It is not sufficient for intellectual property attorneys to have only a passing familiarity with right of publicity law. The entertainment, media, sports, and advertising industries encounter right of publicity issues on a daily basis.
- To educate yourself as to your future clients’ rights, potential liabilities, and options and opportunities regarding legal problems in right of publicity law. Whether you plan to specialize in entertainment or intellectual property law, or simply want to be available to your firm or law office as an attorney who can take on a novel problem in an exciting and potentially high-profile and high-dollar-value area of your firm’s or office’s practice, this book will be useful to you. In many instances, right of publicity law has defined rights and responsibilities and created options and opportunities that are not known or fully understood by the average lawyer.
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Chapter 2. Privacy and Publicity: Origin and Distinctions 60 results (showing 5 best matches)
- In the beginning, there was no right of publicity. It is a modern, twentieth century invention of the law. There was no right of privacy, either, until the beginning of the twentieth century. That is not an idle factoid—the right of publicity began its existence as the right of privacy. Later, in the 1950’s, the two rights diverged, as recounted in the following history:
- We think that, in addition to and independent of that right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and . . . [t]his right might be called a “right of publicity.” For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.
- In 1954, a renowned expert of copyright law, Melville Nimmer, clarified the recently recognized and endorsed right of publicity.
- In this manner, the right of publicity as a property law interest and claim was officially endorsed. Meanwhile, the right of privacy as freedom from intrusion into private matters continued. Some state laws, such as N.Y. Civil Rights Law §§ 50, 51, still include both concepts of the rights, privacy and publicity, to be protected within the same law. The concept of a privacy tort, such as false light, harmful publication of private facts, or harmful appropriation of the persona of a private person, carries on in the common law or statutory law of many states ( Chapter 3 below). Eventually, the simple distinctions between tort and property justifications for a right of privacy vs. a right of publicity were enriched and expanded (as explained in Chapter 4 below). Federal law does not supersede the field of publicity law,
- Publicity claims are property claims, and the complaint of the celebrity often comes down to money: “The celebrity should have been paid for the use of her name, image, or likeness.” The law has come to realize that celebrities are not injured by exposure in the media—they seek out publicity all the time —but they do want to be compensated for the value of their name, image, and persona. This pecuniary focus allows the right of publicity to be balanced by other important rights and public needs—the right of freedom of expression, the right of a free press for news reporting, and the right of comment and criticism are examples of public “goods” (things that are good for the public) that will balance out the right to be compensated for unconsented exploitation.
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Chapter 1. The Concept of a Right of Publicity 19 results (showing 5 best matches)
- A lawyer should study the right of publicity because the sports and entertainment industries have grown to be two of the largest and most profitable industries in the country, and these industries rely heavily on the endorsements of celebrity athletes, artists, and entertainers. Athletes, artists, and entertainers who have reached even a modest level of celebrity status rely on the right of publicity to protect their advertising and publicity livelihood. The United States public pays an inordinate amount of attention to celebrities and sports figures, which in turn raises the profile of right of publicity issues. The size and value of the industries that revolve around celebrities make this a very important area of law. Therefore, it is fair to say that modern business depends on lawyers who have an understanding of right of publicity law.
- The right of publicity protects a person’s name, image, likeness, persona, and often their voice or other distinctive characteristics, from unauthorized commercial exploitation by others. The right has been construed very broadly—basically anything that is exploited by the celebrity herself, or calls to mind, or even is associated with the celebrity, can be protected by the right of publicity. Consider the following examples:
- WHY SHOULD A LAWYER STUDY THE RIGHT OF PUBLICITY?
- WHAT DOES A RIGHT OFPUBLICITY PROTECT?
- Publication of the name, image, or likeness of a celebrity is a serious business. The exploitation of celebrity entertainers, sports figures, and just plain famous people is a huge business in the United States. At his peak as a golfer, Tiger Woods made approximately 10–15 million dollars a year playing golf and winning tournaments, but simultaneously made ten times that amount licensing his name, image, and good will for the endorsement of a number of companies—including Nike, Buick, Gillette, EA Sports, Titleist, and his own company, ETW Corporation. With that much money tied up in one sports figure, you should understand the motivation to recognize and protect rights in the use and exploitation of a celebrity’s name and image. The law has responded by defining and protecting the rights of celebrities to control and protect their valuable personas and a wide-range of their personal attributes from unconsented exploitation.
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Chapter 5. Requirements of a Right of Publicity Action 58 results (showing 5 best matches)
- The right of publicity protects a person from an unwanted and unconsented appropriation of the value of a publicly recognizable persona. In contrast to the right of privacy where plaintiffs generally are (or are attempting to be) very private persons for whom exposure to publicity activity is harmful to their dignity and mental state, the typical plaintiff in a right of publicity action is a very public person—a celebrity of some kind. The modern action is based in property, and a simple formula for trespass on a property right is that you are the owner of the property in question, and someone else is using or taking advantage of it. Some jurisdictions follow this thought to its logical conclusion and make it a requirement that the plaintiff actually have a recognizable publicity interest to protect. In these jurisdictions, plaintiffs must establish the fame or value of their names, images, and persona as a necessary element of the right of publicity cause of action.
- The publication of statistics and facts of matters that are within the general public interest, including facts and statistics of sports figures and celebrities, is not subject to protection under the right of publicity. This has been litigated several times, and each time the cases have resulted in a ruling that the publication of information concerning sports figures’ names, statistics, and records of achievements is not actionable under the right of publicity.
- The injury must be connected to and caused by the actions of the defendant. The right of publicity allows a person to recover damages only for pecuniary gain from misappropriation of their name, image, or likeness. In contrast to the right of privacy, the right of publicity is not intended to protect the person’s feelings, but provides a cause of action where a defendant has been unjustly enriched by misappropriation of the person’s valuable public persona or image. If plaintiff has other injuries caused by the defendant, such as severe emotional distress, the plaintiff can allege and attempt to prove other claims against the defendant, such as a traditional privacy claim, or a claim for intentional infliction of emotional distress. But a publicity claim is for publicity-type damages or injunctive relief.
- Tiger also brought a state law claim under Ohio’s right of publicity law, the same law that was at issue in . This was a more standard publicity action: use of Tiger’s image, in a commercial venture (to sell art prints), without his consent, and causing alleged publicity damage to Tiger. The damage amounts to lost revenue rather than any mental state damages for one such as Tiger who was constantly in the public eye; but everyone has to pay for the use of Tiger’s image and likeness, and Rick Rush didn’t.
- Celebrities also seek out or at least anticipate publicity in their lives in the same way that politicians and prominent business people do. Which means that most often right of publicity plaintiffs will be designated as public figures under the First Amendment. The consequences of this designation are that when a public figure brings a right of publicity claim in a non-commercial speech context (i.e., when the case does not involve advertising of a product or service), the public figure often will have an uneasy time because of the freedom of press and freedom of expression clauses of the First Amendment. The speech of the defendant will not be relegated to the lowest tier of protected speech because it is not commercial speech.
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Chapter 7. Copyright Preemption and the Effect of Licensing 23 results (showing 5 best matches)
- If publicity rights duplicate the rights that are covered by copyright law—such as the situation of a rebroadcast or republication of a taped event, sports contest, or publication—then copyright law might preempt the publicity claim. the rights asserted under a right of publicity claim are the same in every way to the rights protected under copyright law, and potentially controlled by a copyright license, and so copyright law is given priority to control how the publicity rights are recognized and enforced. Right of publicity claims are not preempted if the claims attempt to adjudicate rights that are different from those covered by copyright.
- Thus, the copyright preemption doctrine means that if the conflict between the actors’, athletes’, or celebrities’ publicity rights would undermine a copyright owner’s rights over the creative expressive work, meaning that the rights asserted under the right of publicity claim (i.e., “You copied my image and likeness, and the appearance of my performance”) are the same as claims encompassed by the copyright over the creative expressive work (i.e., “You copied my image and likeness, and the appearance of my performance in a copyrighted work owned by someone else”), then copyright preemption applies. Therefore, when a likeness has been captured in a copyrighted visual work and the work itself is being copied and further distributed, a publicity-right claim interferes with the exclusive rights of the copyright holder, and is preempted by section 301 of the Copyright Act.
- The right of publicity protects actors’, athletes’, and celebrities’ names, likenesses, appearance, and other aspects of their persona—for example, Johnny Carson’s tag line of “Here’s Johnny,” and the particular sound of Bette Midler’s and Tom Waits’ singing voices. At times, the two rights, copyright and publicity, can conflict when a copyrighted work featuring the performance of a celebrity is licensed for a particular duplication, publication, or derivative use, and the publicity rights of the actors, athletes, or celebrities appearing in that copyrighted work are not similarly licensed, and the actors, athletes, or celebrities are not compensated for the second use of their images and personae.
- If the rights asserted by a celebrity are the same rights that were licensed under copyright law to a media company or other publisher, the copyright license trumps the right of publicity claim. The theory is that the exercise of the copyrights over the items protected by copyright (works fixed in a tangible medium of expression) is sufficient to preclude any publicity rights of performers whose performances also are fixed within that work. Implicitly, by agreeing to allow one’s voice, appearance, or performance to be fixed within a work that will protected by copyright, the performer has consented to the licensing and further use of that fixed recording under the exercise of the copyrights to the recording.
- With musical recordings, the recording artists might own one part of the copyright if they are the composer or arranger of the music, another if they produce and pay for the audio recording of the music, and a third if they produce and pay for the creation of a music video. But in each instance, it may be the record company or media conglomerate that owns the various copyrights to the audio and video recordings. An indicative case of preemption in the recording industry involved the rapper “50 Cent” (known in real life as Curtis James Jackson III), in a dispute with rapper “Rick Ross” (known in real life as William Leonard Roberts II) over a mixtape Roberts created that borrowed a portion of Jackson’s (50 Cent’s) hit single, “In Da Club.” The problem for Jackson was that he owned no part of the copyrights to the song and the song recording (the copyrights were owned by his record company), so he was forced to challenge Roberts’ use of Jackson’s voice performing “In Da Club,” as well...
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Chapter 10. The Future of the Right of Publicity 24 results (showing 5 best matches)
- A recreated performance potentially violates the right of publicity of a deceased artist, but the artist’s estate must be domiciled in a state that recognizes and enforces the post-mortem right of publicity. As discussed in Chapter 6, five states do not protect a right of publicity after death, and nineteen others (including the District of Columbia) have not specified a term for the post-mortem right.
- But for the states that have a clearly defined post-mortem right, there remains the issue of whether the right of publicity is implicated by a recreated performance of a deceased celebrity. This seems to have an easy answer, too: “Yes,” the posthumous right of publicity, if it exists in the state of the deceased’s estate, is implicated by this blatant use of the artist’s image, voice, performance style, and persona. The technology recreates almost 100% of the desirable qualities of the experience of the artist’s performance, much more than the mere sound of the singing voice in the sound of the speaking voice in and the single tag-line in Note that the technology allows the creation of new ...is not just a new and fun way to reshow recorded performances. Therefore, seeking the consent of the heirs or others who control the estate of the deceased artist is a very good idea. (This occurred with Tupac—his mother, the administrator of his estate, approved of the Coachella virtual...
- Copyright alone may not be enough to answer the right of publicity questions. The meaning and power of the new technology is in the creation of new, virtual appearances and performances that go far beyond the existing recordings. The idea is to give the audience the experience that that the performer really is present before them, doing something new. Strutting, dancing, singing, sweating—giving them an exposure to the star’s persona, albeit by virtual means. That seems to go beyond the rights that copyright protects in sued and prevailed when the NFL wanted to make new voiceover “performances” using the sound of his voice as collected and recorded in existing copyrighted recordings of NFL Films. This was only one aspect of the John Facenda experience. With Tupac, the audience was treated to a much broader experience—a virtual performance of the man himself—that is not tied to one or even a dozen recorded and copyrighted performances. The whole persona of a performer is not easily...
- Alaska, North Dakota, and Wyoming have no right of publicity, and Rhode Island and Wisconsin have no post-mortem right of publicity. Louisiana’s right is limited to deceased soldiers.
- The copyright preemption issue arises if the person doing the creation of new, virtual performances owns or licenses the copyrights to the records of the performer’s appearances and performances that were used to create the new, virtual performances. Only a small part of this question has been answered in cases such as that dealt with musical compositions and a prerecorded voice track—if new works are created beyond the copyrighted material that is licensed, and the new works mimic or replicate protected aspects of the celebrity’s persona (such as the sound of their voice), then the new works might violate the celebrity’s right of publicity. But if an entire audio or audio-visual recording is the material in question, and the material is used by the owner or licensee of the copyright to the material to create derivatives of the same nature as the original—new musical recordings derived from original musical recordings, and new motion picture footage derived from original motion...
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Chapter 4. Theory and Policy Supporting the Right of Publicity 41 results (showing 5 best matches)
- The United States has not warmly embraced the concept of moral rights in the art world when the threat to dignity comes from certain ways in which the works of artists are treated (destruction or mutilation of works, or failure to give attribution to the true artist being the two most common threats), and similarly has not embraced the moral rights philosophy of personality in the publicity rights area, either. But it should be noted that this moral rights of personality theory is the prevalent theory supporting the extension of rights that parallel or replicate the right of publicity when adopted and enforced in most nations that follow a civil law tradition and that recognize publicity rights.
- Some authors conflate the natural rights theory of publicity rights with the equitable and just deserts theories espoused by Nimmer, , and others. But beyond this overlap, there is a deeper and richer theory of protection of a creative individual’s personality and persona that is distinctly un- American: moral rights. The concept of moral rights in the law originates with German Romantic philosophers, especially Immanuel Kant, and was first applied in legal contexts in France in the mid-nineteenth century. Moral rights adds a dimension to the publicity argument by tying a person’s dignity and inherent humanity to their image and persona. Thus, personality becomes a right to be protected from actions of others that would disrespect and threaten the dignity of the person. There is a considerable overlap between privacy and publicity in this formulation—private persons suffer a personal harm from actions that expose the person to unwanted attention, disgrace, or indignities to their...
- The right of publicity was born out of the necessity to allow a more modern view of favorable media exploitation and its value to a certain group that might be identified as celebrities and sports figures to whom the use of their name, image, and likeness is extremely valuable. Often, as noted in the introduction and Chapter 1, the publicity value is more valuable than the compensation received for playing a sport or pursuing an entertainment career. The case that first recognized and endorsed the property claim of right of publicity was a fairly short opinion, and it spent no time at all exploring the theoretical justifications and public policy support for the new right. It was enough for the Second Circuit to declare that the old privacy claim of “appropriation” was out-of-date and ill-designed for the modern world of celebrities and sports figures for whom publicity was a lucrative business opportunity and a not a matter of embarrassment or personal harm. Therefore, the court...
- The strange facts of the case produced a slightly skewed outcome. The claimant won, but he won against the First Amendment freedom of press broadcast rights of a news station. A bona fide member of the press ultimately was punished (in the civil law sense—paying damages) for reporting the news so that Mr. Zacchini could enjoy his publicity rights. That outcome haunts the law, because normally, in the average factual scenario, a First Amendment news publication defense would defeat a right of publicity claim on most days of the week and twice on Sundays. Nevertheless, we are stuck with —at least until the Supreme Court decides to adjudicate its second right of publicity case.
- Using an economic analysis, the economic justifications for the right of publicity are that enforcement of publicity rights incentivizes celebrities and sports figures to bear the costs and invest the resources of time and energy to persevere to develop highly valuable skills and talents. If publicity rights are protected properly, talented individuals will make a rational decision to strive to get better and better in their art, craft, or sport. It is efficient for society to allocate resources to the protection of the right because celebrities and sports figures create more wealth and public benefit than the cost of protection, and the development of better sports and better entertainment has a positive effect on society’s enjoyment of life well beyond the improvements in the celebrity’s or athlete’s quality of life.
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Appendix. Chart of the Fifty States’ Right of Publicity Laws 24 results (showing 5 best matches)
- This chart reports the status of all fifty states and the District of Columbia as to the enactment of a statute regarding the right of publicity, or the adoption of a common law rule enforcing the right of publicity (Common law (publicity)) or a common law rule enforcing the “appropriation” tort under a right of privacy theory (Common Law (privacy)— Chapter 3), and further reports whether the states’ statutes or courts have addressed the issue of whether the rights will be enforced after death.
- Arizona, Georgia, Michigan, New Jersey, and South Carolina are marked “term uncertain” under Post-Mortem Rights because the states’ courts have recognized a common law right of publicity, and the courts have indicated that the right will be enforced after death, but have not provided a term of years for the post-mortem right. Arizona’s statute, Ariz. Rev. Stat. § 12–761, is limited to uses of soldiers’ names, portraits, or pictures for commercial purposes, and it does not have a post-mortem limitations period.
- Colorado, Connecticut, Delaware, District of Columbia, Idaho, Iowa, Kansas, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Mexico, North Carolina, Oregon, Vermont, and West Virginia are marked “unknown” as to post-mortem rights when the states’ courts have only recognized a common law right of privacy or publicity, and the states’ courts have not addressed the issue of whether the rights will be enforced after death.
- CHART OF THE FIFTY STATES’RIGHT OF PUBLICITY LAWS
- Massachusetts’ statutes on privacy and publicity, Mass. Gen. Laws ch. 214, §§ 1B, 3A, Nebraska’s statute on right of publicity, et seq., and Utah’s statute on abuse of personal identity, et seq., do not specify whether the rights apply after death, and no courts have addressed this issue.
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Chapter 9. Fair Use of Celebrity Names, Images, and Likenesses 113 results (showing 5 best matches)
- So begins the balancing. In one side of the scale, we place the value of protecting the publicity rights in the context of how they were used or displayed by the defendant. In this case, the publicity rights involved were highly valuable and expensive. Cardtoons had chosen a high value target—professional baseball players—whose publicity values are very high on the food chain for celebrities in general, and for marketing and promotion in particular. And Cardtoons took the best, most famous of the players for their cards. The use was commercial—the cards were being sold—but the use of the images wasn’t blatantly commercial in the sense of commercial advertising. The only thing being promoted was the cards themselves. In the other side of the scale, we place the value of the public policies being served by the use. Here, we have two very important, high value public policies: freedom of speech, and the right to criticize public figures. This was tempered by a very practical... ...of...
- The need to balance free speech rights with publicity rights has led to the creation of a doctrine of fair use in right of publicity law. Celebrities are interesting subjects, and their names, images, personas, and aspects of their lives and performances have symbolic, moral, entertainment, and informational value in expression. All judges, legislators, practitioners, and law professors agree that there are fair uses of celebrities’ names, images, and likenesses that do not subject the user to liability for violating a celebrity’s right of publicity. There is no question that certain uses fulfill public policy needs and objectives that surpass the need to protect the commercial exploitation value of a celebrity’s image or likeness. There even is general agreement on the types of fair uses—news and public affairs reporting, commentary on and criticism of the celebrity, and artistic expression are the main examples. However, the courts in the several states and the different circuits
- separate and distinct fair use tests that have been applied by courts in right of publicity cases. All of them speak to the same issue: the proper balance of First Amendment expression and other public policy benefits weighed against the protection of publicity rights.
- Kruger asserted a fair use defense to Dabney’s right of publicity claims. As per usual in right of publicity cases, the court applied more than one test. was a no-brainer under New York law—Kruger created an artistic rendition of a celebrity’s image. That adds up to fair use under balancing test which balanced in Kruger’s favor; her strong artistic expression over-balanced an incidental exploitation of a thirty-year-old photograph of a model showing her appearance thirty years ago. The court also applied the transformative test, and found that Kruger’s creative additions transformed the original image of the celebrity, and also, on the subsidiary inquiry, that Kruger is well known for these artistic constructions of older photographs with new, ironic wording, so it would be very likely that people would collect the piece because it was a “Kruger” not because someone named Charlotte Dabney was seen in it. All of these tests added up to a fair use victory for Kruger.
- Twist sued, under a John Doe name, and named one of McFarlane’s businesses as the first-named defendant. (Perhaps Twist didn’t want McFarlane to get publicity value from being sued by a famous—or infamous—hockey player?) The court had to determine if the creative artistic expression of the comic and the nominal convergence of the two Tony Twist names were permitted under the Missouri right of publicity law (which was a court-developed, common law right in Missouri), as balanced by the First Amendment right of free speech and artistic expression. The court had its choice of the fair use tests used in , and a few other, lesser-known cases. It decided to invent one of its own: the “predominant purpose test.”
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Chapter 6. Post-Mortem Right of Publicity 16 results (showing 5 best matches)
- Death is normally not a bar to successful exploitation of publicity rights, as long as your estate is not domiciled in Alaska, North Dakota, Rhode Island, Wisconsin, or Wyoming when you die, which are the states that expressly do not recognize a post-mortem right of publicity, or never have recognized privacy or publicity rights for anyone, living or deceased. 2020, New York also did not recognize the claims of the deceased. The New York rule stemmed from the origin of the right in New York State as a right of privacy; privacy being a very personal thing, it cannot be assigned or devised to one’s heirs. It was viewed as a right to exploit or defend while one was living. But the legislature eventually saw the need in 2020 to the change New York’s hundred and seventeen year old law to add coverage for posthumous claims of celebrities, who are defined in the law as either a “ ‘deceased performer’ [which] means a deceased natural person domiciled in this state at the time of death who,...
- Under the majority of states’ laws, the heirs and owners of the rights of exploitation can enjoy the fruits of publicity after death if the celebrity’s death occurred after the passage of the right of publicity statute. Therefore, for a celebrity who has recently passed this world, enforcement of publicity rights are guaranteed (outside of Alaska, North Dakota, Rhode Island, Wisconsin, or Wyoming). But certain courts may require that the publicity rights were granted or created by statute or common law, or at least were recognized by a court or legislature of the applicable jurisdiction, while the celebrity was alive. Under this interpretation, if the rights existed when the celebrity was alive, then the rights can be devised to the celebrity’s heirs upon the celebrity’s death. However, celebrities who died several decades ago, before several of the longest-term post-mortem right of publicity statutes were passed (two important examples being California and Indiana), may face problems.
- The heirs of Marilyn Monroe learned this the hard way in At the time of her death in 1962, Marilyn Monroe had no descendible postmortem publicity rights under the laws of either New York or California, her only possible domiciles at the time of her death, and thus, the court found she lacked testamentary capacity to devise such rights, despite the claim that her will should have been construed as devising postmortem publicity rights that were later conferred on her by an Indiana or California statute. The court declared that only property she actually owned at the time of her death could be devised by will. A similar action, in the Ninth Circuit United States Court of Appeals came to the same conclusion in 2012—that Marilyn Monroe had no rights under New York or California law at the time she died, so she could not pass them on through her estate after death even though the rights later were “created” under California and Indiana law.
- The federal trademark claim of false endorsement has been held to be enforceable post-mortem. federal claim parallels and sometimes overlaps the rights protected in a right of publicity action. (
- Nebraska has a statutory right of publicity (phrased as privacy) provision that survives death, but it provides no term of years for the right.
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Chapter 3. The Modern Right of Privacy 51 results (showing 5 best matches)
- Meanwhile, the right of privacy as freedom from intrusion into private matters continued. As noted in the previous chapter, some state laws, such as N.Y. Civil Rights Law §§ 50, 51, still include both concepts of the rights, privacy and publicity, to be protected within the same law. The concept of a privacy tort, such as false light, harmful publication of private facts, or harmful appropriation of the persona of a private person, carries on in the common law or statutory law of many states.
- Both privacy and publicity claims will look to the commercial nature of the exploitation. The motivation to sue and the damages the victim will prove probably will differ in the two kinds of action. In a privacy suit, the claim will be that the use of the plaintiff’s image in commercial advertising was embarrassing and hurtful, or affected the reputation of the victim in a negative manner. In a publicity claim, the allegation will be that the victim did not consent to the use and that the defendant unfairly enriched himself by taking and using the image without bothering to pay for it.
- N.Y. Civil Rights Law § 51
- The property claim and cause of action reflects the monetary value of a famous person’s name, image, or likeness. Famous people live in the limelight, and media exposure is nothing new to them. Publicity in and of itself does not cause hurt feelings or embarrassment. But the celebrity knows her image is valuable, and wants to be paid for uses of her name or image, especially when used in connection with a commercial endeavor or in the advertising of a product or service.
- Lastly, right of publicity claims vindicate the offense of:
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About the Author 2 results
- Professor Murray is a busy scholar in the areas of right of publicity, copyright, trademark, and many other art law topics. In addition to his law review and journal articles, he is the author of
- Professor Michael D. Murray is the Spears Gilbert Associate Professor of Law at the University of Kentucky, J. David Rosenberg College of Law. He previously taught at the University of Massachusetts School of Law, the University of Michigan Law School, Valparaiso University School of Law, the University of Illinois College of Law, and Saint Louis University School of Law. He also has taught in China, Italy, and the United Kingdom. Before beginning law teaching, Professor Murray practiced law at Bryan Cave LLP law firm after clerking for U.S. District Judge John F. Nangle in the Eastern District of Missouri. Professor Murray graduated from Columbia Law School (JD, Harlan Fiske Stone Scholar), Loyola University-Maryland (BA, summa cum laude, Whelan Medal), and from Fudan University in Shanghai, China (Grad. Cert.).
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Chapter 8. False Endorsement and False Designation of Origin 56 results (showing 5 best matches)
- Although the “use in commerce” and “likelihood of confusion” elements of the Lanham Act, section 43(a) claim do add steps to the analysis, the outcomes of federal false endorsement claims parallel the outcomes in state law right of publicity claims. A defendant who merely conjures up the persona of a celebrity and creates the possibility of a false express or implied representation that a particular person has authorized or approved use of a product is subject to liability. It is not necessary to use the celebrity’s name or actual appearance in the ad.
- The prohibition about false representation about sponsorship or endorsement includes the implied endorsement of a celebrity for the product or service in connection with which the celebrity’s name, image, or likeness is used. This is the part that parallels a typical right of publicity claim—use of a name, image, or likeness, without consent or authorization, for some kind of commercial advantage. The federal claim requires that the use be “in commerce,” which implies that there are certain uses in the arts, in news media, in education, or other non-commercial activities, that will not fall within the coverage of the federal claim. The federal claim also requires “likelihood of confusion,” which asks “whether a reasonably prudent consumer in the marketplace is likely to be confused” with regard to the implied endorsement or sponsorship of the celebrity.
- : Tiger Woods (ETW) sued Rick Rush (Jireh) in a trademark claim of false endorsement and false designation of origin under section 43(a) of the Lanham Act. The court recognized that Woods could bring the claim as a federal false endorsement claim, but ultimately, the court lumped this claim with the Ohio Right of Publicity statutory claims, and disposed of all
- Issues regarding the exploitation of publicity rights certainly can and should be covered by contract as part of the compensation and “residuals” of the actor’s contract when the actor agrees to perform in the motion picture. But absent a contract provision on the topic, a person who seeks a license to create a “Han Solo” or “Luke Skywalker” doll—recurring characters in the Star Wars series—will negotiate with the copyright holders of the Star Wars franchise, presumably Lucasfilm or Disney, and not with the individual stars, Harrison Ford and Mark Hamill, who portrayed those characters in the copyrighted motion pictures. Unless Ford and Hamill bargained for the rights to control their personas in those characters in secondary uses such as toys, they would not have a claim for false designation of origin regarding products based on the characters which were produced under a license from the copyright holders of the Star Wars franchise.
- Federal law contains two claims that parallel and sometimes overlap state law right of publicity claims: false endorsement or false designation of origin claims. The source of both of these claims is federal trademark law, section 43(a) of the Lanham Act, codified at
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Index 178 results (showing 5 best matches)
- Preemption of publicity claims. See Right of Publicity, this index
- Right of publicity, fame of plaintiff as element of claim
- Freedom of press, right of publicity tensions, 53
- Death of plaintiff. See Post-Mortem Right of Publicity, this index
- Publicity rights and privacy rights distinctions, 83
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Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2018 LEG, Inc. d/b/a West Academic
- © 2022 LEG, Inc. d/b/a West Academic
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Outline 31 results (showing 5 best matches)
Title Page 4 results
WEST ACADEMIC PUBLISHING’S EMERITUS ADVISORY BOARD 14 results (showing 5 best matches)
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest Law University of the District of Columbia David A. Clarke School of Law
- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- Robert A. Sullivan Emeritus Professor of Law University of Michigan
- John Deaver Drinko/Baker & Hostetler Chair in Law Emerita Michael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Table of Cases 8 results (showing 5 best matches)
- Publication Date: May 6th, 2022
- ISBN: 9781636593562
- Subject: Intellectual Property
- Series: Nutshells
- Type: Overviews
- Description: Right of Publicity in a Nutshell will orient and acclimate the reader to the structure, public policy, claims, issues, and defenses of right of publicity law that regulates the use of celebrity names, images, and likenesses. The guide will teach you the vocabulary to use when consulting with lawyers, clients, accountants, financial planners, and insurers in the arts, entertainment, and sports fields. The book covers the concept of a right of publicity, the origin and distinctions between privacy and publicity law, the modern right of privacy, the theory and policy supporting the right of publicity, the requirements of a right of publicity action, the post-mortem right of publicity, copyright preemption and the effect of licensing, the federal false endorsement and false designation of origin claims, fair use of celebrity names, images, and likenesses, and the future of the right of publicity.
