Rights of Publicity
Under state statutes and case law, individuals have so-called privacy rights which restrict the use of a person’s name, signature, likeness and voice from any commercial use without permission, not just celebrities. There is no federal “right of publicity” or “right to privacy” law. Different state laws exist in every state, both statutory and common law, although the federal Lanham Act § 43a prohibits the use of personal names under certain circumstances. State privacy laws also extend to property closely associated with a person’s identity, such as racecars, houses, pets, etc. Different rules apply if the individual is deceased. In California, a deceased celebrity must register with the Secretary of State and an exception in the law permits the commercial sale of a deceased person’s likeness in single and original work of fine art. Photographs, paintings and sculptures are “commercial products” and websites are advertisements. No monetary profit is necessary for a use to be “commercial”.
Exceptions to Right of Privacy/Publicity Laws - Public Figures - Newsworthy PersonsPoliticians, criminals, athletes, celebrities and even private citizens who are thrust into the public eye by newsworthy events are considered "public figures' and may be subject to exceptions in privacy laws for "newsworthy" individuals. But even public figures may restrict unauthorized "commercial" uses of their likeness.
Some examples from recent court cases illustrate how different facts affect
whether or not privacy rights may be enforced.
In Montana v. San Jose Mercury News, Inc. , a newspaper's sale of posters of quarterback Joe Montana was held not to infringe Montana's privacy or publicity rights. In Hoffman v. Capital Cities/ABC, the use of an actor's face superimposed on another's body was held to be non-commercial speech without malice, protected by First Amendment. Dora v. Frontline Video, and Astaire v. Best Film & Video, held that use of a likeness of a live surfer in a video on surfing and the likeness of Fred Astaire in an instructional dance video did not violate California's right of publicity statute.
In the music area, Parks v. La Face Records involved a song entitled "Rosa Parks" that included lyrics about "going to the back of the bus". After a lower court dismissed all of Rosa Parks' claims on the basis that the recording related to the use of the celebrity's name and thus was entitled to First Amendment protection and did not violate Rosa Parks' right of publicity, even though the composer profited from the song, the appeals court reversed the dismissal by the lower court and reinstated Rosa Parks' trademark and unfair competition claims. The case was remanded for further proceedings. Montgomery v. Montgomery involving a "tribute" music video depicting performances of a deceased country western singer throughout his career was held protected by the First Amendment and not found to be a violation of the singer's right of publicity.
In Wendt, Ratzenberger v. Host International, Inc. robots looking like actors from the television series Cheers were found to possibly infringe the actors' rights of publicity. In White v. Samsung Elect. , a robot with a blond wig was found to violate game show hostess Vanna White's right of publicity, with an important dissenting opinion written by Judge Alex Kozinsky. In Comedy III Productions, Inc. v. Sadderup, Inc. a First Amendment defense to right of publicity claims by deceased celebrities was held to be inapplicable where work was not "transformative" and its value derived from the celebrities' fame.
In ETW Corp. v. Jireh Publishing, Inc. , Lanham Act claims were dismissed where plaintiff failed to establish valid trademark rights in the image of Tiger Woods, and defendant's limited edition print was an artistic creation seeking to express a message, protected by the First Amendment. Solano v. Playgirl allowed an actor to sue a magazine under California's right of publicity statute, Civil Code section 3344, and for false light invasion of privacy for using the actor's photo with misleading headlines. In Cairns, (Princess Diana) v. Franklin Mint , the California court held that the post-mortem right of publicity claim under California Civil Code section 3344.1, was properly dismissed because the deceased personality's domicile (the United Kingdom) did not recognize a post-mortem right of publicity. The court held the nominative, descriptive fair use defenses under 15 U.S.C. section 1115 (b) insulated Franklin Mint, the party using Princess Diana's image without permission, from liability and awarded the defendant attorneys' fees of $2,308,000.00. In contrast, M.G. v. Time Warner, Inc. held that the 'newsworthy' defense did not permit the use of a Little League team photo in a television news report on a coach accused of child molestation.
Incidental UsesIn Sandoval v. New Line Cinema Corp. the appearance of ten photographic portraits of the plaintiff in the motion picture Seven were held to be "virtually undetectable", and non-actionable. Polydoros v. Twentieth Century Fox Film Corp. found that similarities in looks, locale, and activities between plaintiff and character in film did not constitute commercial appropriation or invasion of privacy. The court reasoned that the film was not about plaintiff and was an example of free expression.
Federal PreemptionMany right of publicity cases fail because, under the doctrine of "federal preemption," if an individual has consented to the use of his or her likeness in a copyrighted work, claims for unauthorized use of the individual's likeness in that copyrighted work are "preempted" by federal copyright law and may only be brought on the basis of copyright infringement in federal court. For example, in Fleet v. CBS, Inc. claims of misappropriation of an actor's likeness in a motion picture were held to be preempted by federal copyright laws.
Visual Art Depicting Minors; Harmful Matter - Federal StatutesThe federal Child Pornography Prevention Act defines "child pornography" to include any depiction which "appears to be of a minor", including virtual child pornography. In United States v. Knox, a video which focused on pubic area of minors wearing bathing suits constituted "exhibition of genitals or pubic area" under 18 U.S.C. ?2252(a)(2) even though the body parts were covered by clothing resulting in the criminal prosecution of the videographer. The Child Online Protection Act restricts access by minors to "harmful material" a much lower standard than the adult "obscenity" standard. The Communications Decency Act which once prohibited transmitting "obscene or indecent" communications to a recipient under 18 years old was held unconstitutional in Reno v. ACLU .
State StatutesMany state laws restrict the access of minors to "harmful matter" , a standard of prohibited sexually explicit matter which is much lower that the obscenity standard applicable to consenting adults. In one notorious case, the rock band The Dead Kennedys and their record company were criminally prosecuted and acquitted for including H.R. Geiger's painting "Penis Landscape" as a poster in a record album sold to minor.
In general, under state statutes and case law, all individuals, not just celebrities, have privacy rights which restrict the use of a person's name, signature, likeness and voice from any commercial use without permission, There is no federal "right of publicity" or "right to privacy" law although the federal Lanham Act prohibits the use of personal names under certain circumstances. State privacy laws also extend to property closely associated with a person's identity, such as racecars, houses, pets, etc. Different rules apply if the individual is deceased.
Under state statutes and case law, all individuals, not just celebrities, have privacy rights which restrict the use of a person's name, signature, likeness and voice from any commercial use without permission, There is no federal "right of publicity" or "right to privacy" law although the federal Lanham Act prohibits the use of personal names under certain circumstances. State privacy laws also extend to property closely associated with a person's identity, such as racecars, houses, pets, etc. Different rules apply if the individual is deceased. Photographs, paintings and sculptures may be "commercial products" and websites are advertisements. No monetary profit is necessary for a use to be "commercial".
To avoid liability for violating publicity or privacy rights, photographers, filmmakers and artists should obtain written permission from individuals depicted in their artworks to use the individual's name, image, voice, or signature.