What is the Right of Publicity?

Rights of publicity are property rights; specifically, intellectual property rights held by each individual, or, in the event of death, whosoever has inherited those rights. While they are not a constitutional right, they have been recognized and codified into law throughout the U.S.

These rights give you exclusive control over the use of your identity and personality by preventing others from using your name, image, likeness, signature, distinct characteristics, or recognizable aspects of your persona in a commercial manner.

To use something commercially simply means that it is concerned with commerce, and/or the person using the rights is attempting to make a financial gain.

Who has the Right of Publicity?

In a nutshell, pretty much everyone. However, any individual whose name, image, or likeness is recognizable among the public should be aware of their rights under the law. These are the individuals whose rights are likely to be violated.

If you profit off your identity, others will try to do the same.

If you value controlling your narrative and how you are perceived, your fan-base and the quality of products associated with you, and the exclusive ability to use your identity commercially, informing yourself about your rights of publicity is vital.

Many famous personalities have been able to protect their exclusive rights in U.S. courts.

Bette Midler famously sued Ford Motor Company who had hired her backup singer to impersonate her in a commercial. The court ruled that Midler had exclusive control over her voice and distinct characteristics such that Ford was prevented from using the imitation without her authorization.

Limitations to the Right of Publicity

In theory, everyone has an identity and personality, so everyone should have rights of publicity. But, it gets a bit complicated. Each state has its own laws and limitations on these rights – e.g. who, has them, how long they last, and even if they exist at all.

State Limitations

About half of the states recognize a statutory or common law right of publicity – but, these rights differ wildly. Some only recognize rights of celebrities, some recognize anyone but only until death, some recognize post-mortem rights for a certain amount of years, but those swing from 10 years in states like Tennessee, to 100 years in states like Indiana.

Additionally, rights of publicity can be effectively cancelled in certain states. For example, Tennessee will strip your rights if they are not used for a 2 year period of time within the 10 year post-mortem timeframe.

The short answer as to who has these rights is to check with the state in which you are domiciled, and/or the state in which the person was domiciled at the time of their death.

Even if you have multiple residences in different states or countries, you only have one domicile – the place that you consider your permanent residence and in which you pay taxes and vote among other legal requirements. That is the state whose laws will determine whether rights of publicity exist.

First Amendment Limitations

There are instances where others can use your name or persona without violating your rights.

The First Amendment right to free speech allows others to use your name and persona in cases of newsworthiness, parody, satire, criticism, commentary, and for informational and educational purposes. That Saturday Night Live sketch – not a violation; the 6pm Evening News – also not a violation.

Transformative use of your persona is also permitted. So long as there is a creative element that has transformed the original likeness in some way, such use is not a violation.

It is important to keep these limitations in mind when investigating any third party uses of your identity.

What Constitutes a Violation?

Using the name, image, likeness, characteristic or persona of another without the right-holder’s authorization in commerce.

Examples include:

• the distribution of a photograph bearing the image of another
• the use of a person’s name or image to sell a product such as a t-shirt
• the impersonation of another in an advertisement (such as the Midler example)
• the distinct characteristics or life story of another used in a film or production

The author of The Help was sued for writing a character that was based on the true story of another, and the screenwriter of The Hurt Locker was sued for depicting the real experiences of a soldier (although ultimately the court found that no such violation occurred).

Benefits to Enforcing Rights of Publicity

There are numerous benefits to enforcing your rights of publicity that you would be remiss not to consider. Some of those benefits include:

1. Revenue Stream

You can create products, services, advertisements, or any other commercial use of your name and sell them to consumers or third parties for a significant profit. This is what celebrities do when they endorse a product, or what influencers do when they are sponsored by brands.

As with other intellectual property rights, rights of publicity can be licensed or assigned by the owner. This would allow the owner to control the parameters of use while simultaneously receiving a financial benefit by way of a new revenue stream.

2. Choice

Not to be overlooked is the ability to choose whether you even want your name or persona to be used in any commercial manner at all. You are the only one who can authorize such use, and it will remain that way for at least your lifetime.

3. Exclusivity

Preventing others from using your persona allows you to exclusively profit off your own name as you will be the only supplier in the market. This will drive consumers to your door, and no one else’s.

Benefits to Litigation

1. Recovery of Profits

You can get compensation from those who have violated your rights. The law in a majority of states allows a rights-holder to collect the profits, or actual damages, from the violator. This would include any profits made in conjunction with the sale of a good or service that used your identity.

2. Injunction Against Violators

Along with the financial recovery, courts also take steps to prevent violators from continuing to violate these rights in the future. These steps include the suspension of ecommerce stores and permanent injunctions stating that the violator will bear further consequence should they be found to commit a violation again.

If you would like further information on Rights of Publicity, or have any specific questions that you would like Our Team to answer, please submit your question on the Contact Us page, or shoot us an email at contact@scip.law to set up a consultation.