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Intellectual Property Law

Aug20

Celebrities Sue Over Unauthorized Use of Identity

A right of publicity is the right to control the commercial value of your name, likeness, voice, signature, or other personal identifying traits that are unique to you.

The right of publicity is all about identity. Depending on who you are your identity is a significant asset, worth millions of dollars, and able to wield significant power over the government, business, and private sectors. Put another way, identity is a valuable property right.

Technically, everyone enjoys a right of publicity. However, it probably comes as no surprise that in most cases, the right is only zealously and jealously guarded by the famous (and infamous) in our society.

The right of publicity is an integral part of the right of privacy. In addition to protecting against unauthorized use of a person’s name or likeness, the right of privacy protects a person from the publication of embarrassing private facts, from being put in a false light, and from publication of false information.

The right of publicity was first identified as such in a 1953 case called Haelen Laboratories vs. Topps Chewing Gum, Inc. In Haelen, the court pointed out the right of publicity was not based on protecting a person’s privacy, but on preventing the unauthorized use of a person’s name or likeness.

Celebrities Sue To Protect Image

Bette Midler knows rights of publicity. She used her right of publicity to prevent use of a sound-alike singer to sell cars.

Ford Motor Co. hired one of Midler’s backup singers to sing on a commercial – after Midler declined to do the ad – and asked her to sound as much like Midler as possible. It worked, and fooled a lot of people, including some close to Midler. Midler sued, and the court ruled that there was a misappropriation of Midler’s right of publicity to her singing voice.

The bottom line: Midler’s singing voice was hers to control. Ford had no right to use it without her permission. That lesson cost Ford a tidy $400,000.

Other celebrities have been equally successful in preventing unauthorized commercial use of their name and/or likeness.

Johnny Carson was able to prevent a portable toilet company from using “Here’s Johnny.” Kareem Abdul-Jabbar was able to prevent the commercial use of his former name, Lew Alcindor, in conjunction with sales of automobiles.

George Wendt and John Ratzenberger, Norm and Cliff on the television show “Cheers,” sued for violation of their publicity rights when a company created robots that resembled them. So did Vanna White. The law offers broad protection in this area, especially to famous celebrities.

Rights Recognized In Majority of States

Currently, the right of publicity is recognized in over half the states, either by statute or common law. Although many states recognize that everyone has a right of publicity, some only recognize celebrity rights.

Many states also recognize a post-mortem right of publicity, with terms ranging from 10 years to 100 years, even as long as continuously used. Specifically, California recognizes both common law and statutory rights.

California Civil Code, Section 3344, provides that it is unlawful, for the purpose of advertising or selling, to knowingly use another’s name, voice, signature, photograph, or likeness without that person’s prior consent.

The statute also sets a term of 50 years for post-mortem rights of publicity, and additionally allows for registration with the secretary of state as successor-in-interest to the right. California common law protects against misappropriation of a person’s name, likeness, and identity.

Although there is no federal right of publicity, there has been much debate on the subject, and a federal right may eventually be recognized (see http://www.inta.org/policy/res_rtofpubl.shtm]).

In the meantime, the federal Lanham Act, Section 43 (forbidding false designations of origin, including false endorsements), can be used to combat unauthorized commercial use at the federal level of a person’s name in connection with goods and services.

Limitations Exist On Rights

There are, of course, limitations on the right of publicity.

First Amendment considerations may trump the right of publicity when certain types of speech or expression are at issue. Especially when the expression involves artistic expression, such as in film or literature, or is “newsworthy,” the First Amendment protections will kick in and bar a suit based on the right of publicity.

“Newsworthy” generally means news and factual information relating to public issues and entertaining information about a person. In order for First Amendment protections to apply, there must be some reasonable connection between the person and the newsworthy material.

Names and photos of people appearing in books, magazines, or news articles can usually be used without permission as long as there is a reasonable connection between the person and the material.

Evaluate The Risks

If you are involved with creation of content or advertising, you need to take steps to prevent inadvertent unauthorized use of another’s right of publicity.

The first step is to review the material you are planning to use for possible rights of publicity. Remember, everyone has a right of publicity, not just celebrities.

If you are using material that contains someone’s name, likeness, or even the sound of their voice, you need to evaluate the risks involved, perhaps with the assistance of legal counsel, before you publish that material.

You should consider contacting the person or their agent and get written permission before using any aspects of their identity. You may have to pay to obtain those rights.

You need to investigate the use of a deceased person’s name to determine if any rights still exist, and who holds those rights. You should also determine what defenses you may have that will allow you to use the material and reduce the risk of a lawsuit. Finally, depending on your situation, you should consider obtaining insurance that will cover right of publicity claims against your business.

Now, you may be wondering, do you have a valuable right of publicity? If you are famous -even if it’s just for 15 minutes – you definitely do, just like Bette Midler!

Hoisington is an associate in the intellectual property group of Higgs, Fletcher & Mack LLP.