You Own Your Identity: The Right of Publicity Overview
You probably already understand that if you copy and/or distribute a copyrighted image without permission, you can be liable for copyright infringement. You also know that by using another's trademark name or logo with your own products or services, you can be liable for trademark infringement. What you may not realize, however, is that names, images, or other "indicia of identity" of another person, even if not protected by copyright or trademark, may still be protected under the legal doctrine known as the right of publicity. If you were to use such a protected name or image in commerce (to sell or advertise a product, for example), you could be liable for violating the right of publicity of the individual depicted. In most states, the right of publicity is afforded to every person, famous or not. What is the right of publicity? In a nutshell, the right of publicity gives an individual the right to prohibit the use of one's name, voice, signature, photograph, likeness, or other forms of identity in connection with sales, advertising, or other commercial activities. The Third Restatement of Unfair Competition defines a right of publicity violation as "using without consent the person's name, likeness, or other indicia of identity for purposes of trade . . . ." States that have codified the right of publicity include California. California's right of publicity statutes define a violation as using that person's name, voice, signature, photograph, or likeness in connection with selling or advertising any products or services without consent. California also distinguishes between an "individual" (any person) and a "personality" (an individual whose identity "has commercial value"). Courts that have considered the right of publicity have interpreted "indicia of identity" very broadly. In three of the most famous right of publicity cases, the courts protected the individuals in circumstances where the advertisers did not use their actual voice, signature, or image.
Bette Midler sued Ford Motor Company for hiring a singer to imitate her voice in a commercial. Johnny Carson sued a portable toilet manufacturer named "Here's Johnny Portable Toilets, Inc." (the self-proclaimed "World's Foremost Commodian"). Vanna White sued Samsung Electronics America, Inc. for publishing an advertisement that depicted a robot version of the Wheel of Fortune star. In each of those cases, the person's right of publicity was found to be violated because there was some sort of appropriation of the person's identity.
The right of publicity is unique and distinct from its siblings, trademark and copyright (although at times the three overlap). Comparison of the right of publicity with trademark and copyright These three types of intellectual property—trademark, copyright, and right of publicity—are similar, but distinct. Trademark law protects a "word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others." Protected marks are those used in commerce. Overlap between trademark and right of publicity can develop in scenarios where a person's name or likeness are used in connection with a commercial activity and thus receive trademark protection. Trademark rights are generally created upon the first commercial use of the mark. Right of publicity typically does not require prior commercial use of one's name or likeness to be established. A copyright may protect any original work or authorship that is fixed in a tangible medium, such as a written piece, audio recording, or photograph. A copyright exists as soon as the work is created. The person who created the work is the owner of the copyright, unless she created it as a "work for hire," in which case the person or entity that commissioned the work is the copyright owner. Thus, if a photographer took a person's picture, the photographer would, by default, own the copyright to the picture. If a third person later wanted to use that picture to sell a product, the third person not only would need to obtain a copyright license from the photographer to avoid liability under copyright law, but additionally would need to receive consent from the subject of the photograph to avoid violating the subject's right of publicity. Conclusion Although the concept of right of publicity may overlap somewhat with trademark and copyright law, the right of publicity may be invoked whenever a person uses another's "indicia of identity" in commerce without consent, even if not covered by trademark or copyright. Courts have held that virtually any identifying characteristic is an indicium of identity protectable under the right of publicity.