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My Fame, My Income: A Quick Course in the Right of Publicity

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Private individuals have
privacy rights, and, to a lesser extent, so do celebrities. In most
circumstances, however, only celebrities have the right of publicity. That’s
because they are generally the only people with the sort of name recognition
that makes their identity valuable in the marketplace.

 

The right of publicity differs
from the better-known right of privacy in a basic way. Invasion of privacy
involves an assault on someone’s reputation, peace of mind, or dignity, but
when you infringe someone’s right of publicity, you infringe a property
right—that is, you may be sued because you have infringed someone’s legal
right to be the only one who profits from the commercial value of his or her
identity. Celebrity endorsements by athletes, models, movie stars, and even
politicians can earn large fees for the celebrities; it’s not surprising that
they protect the use of their names and images vigilantly.

 

Right of publicity is a relatively
new area of the law and has not been around long enough for all jurisdictions
and courts and legal scholars to agree completely on its shape. The right
varies widely from one jurisdiction to another. Most states, however, have now
recognized the publicity right by court decision or statute, and it is likely
to be recognized even more widely just as soon as appeals-court decisions are
handed down in appropriate suits, or legislators pass right-of-publicity
statutes in states that do not already have them.

 

You can minimize the risk of being
sued for infringing someone’s right of publicity by studying the examples that
follow. Although they are fictitious, they are realistic. They are designed to
teach you how to decide correctly for yourself, in most instances, whether a
proposed use of someone’s name or likeness constitutes an infringement of his
or her right of publicity.

 

Fore!

 

Your cover design for your latest
title, Golfing Tips
of the Pros
, features photos of three famous golfers, Arnold Palmer,
Jack Nicklaus, and Nancy Lopez. You neglect to ask anybody’s permission to use
them, figuring that all those famous golfers are public figures. You remember
hearing something about public figures having less ability to control press
coverage of their activities than private individuals.

 

When the book hits the market,
representatives of Mr. Palmer, Mr. Nicklaus, and Ms. Lopez call your
distributor, threatening to sue if copies are not pulled from store shelves and
also asking for your address in order to sue you. At trial, you are forced to
admit that the golfing tips embodied in the book are actually tips from the
pros at a local golf club. The lawyers representing the famous golfers argue
that your use of their clients’ photos on the cover implies that the book’s
tips are from these pros and constitute a violation of their right of
publicity.

 

You decide to cut your losses and
settle the suit before the plaintiffs present their case. Your lawyer says you
should be happy that you were not also sued for false advertising, since the
famous golfers on the cover of your book had nothing to do with the tips
inside. You go home and ponder what Shakespeare said about killing lawyers, but
in your heart you know he’s right.

 

Cashing In on the King

 

As the marketing director of a
publisher that is about to launch a book called <span
style=’font-size:11.0pt’>Fifties Days
, you plan to stage a
“Fifties Days” event once a week at various bookstores. The centerpiece of your
marketing campaign will be Elvis look-alike contests at these events. You will
also produce souvenir Elvis coffee mugs and T-shirts for sale.

 

For the mugs and shirts, you plan
to use a vintage photo of a skinny Elvis in performance with the slogan “I Saw
Elvis at the Fifties Days Celebration.” Your company’s president loves the Elvis
contest idea and the mug and T-shirt tie‑ins, but he says he is worried
that you need permission from somebody to use Elvis Presley’s photograph and
name in the promotion. You assure him that you remember reading that no dead
person can be defamed and that, therefore, it’s unnecessary to get permission
from anyone before launching the planned promotion. The book sells well during
the events, and the bookstores sell so many Elvis T-shirts that you have to
reprint the shirts twice to meet the demand.

 

You bask in glory until the day
you get a call from the legal department saying that the Elvis Presley estate
has sued your company for infringing Presley’s right of publicity by producing
and selling Elvis mugs and T-shirts. The suit asks for an injunction against
further sales of the mugs and shirts, impoundment of all the unsold infringing
mugs and shirts in the company’s possession, the profits from its sales of the
items, and a substantial award of damages.

 

The lawyer you consult says that
you have, indeed, run roughshod over the rights of Mr. Presley. You respond
that most people believe that Elvis Presley has been dead for years and ask
whether the lawyer is one of those who think differently. The lawyer then tells
you that, for purposes of the lawsuit, it really doesn’t make much difference,
because under Tennessee law, under some circumstances, the right of publicity
survives the death of the celebrity and is owned and can be enforced by the
celebrity’s estate. You say you didn’t know this. The lawyer counters that this
is not only obvious but also immaterial. Your employer settles the lawsuit
quickly and nobody fires you, but you figure you can forget about your bonus
this year.

 

Risky Wrinkles

 

A celebrity’s right of publicity
may be infringed in several ways. If you use a photo or drawing of the
celebrity, his name, or her recorded voice or image without permission to
advertise, promote, or otherwise draw attention to your books, you have
infringed that celebrity’s right of publicity. Generally speaking, the standard
for identifiability is the same for right-of-publicity lawsuits as for
invasion-of-privacy suits and libel suits: if the celebrity is recognizable as
himself or herself, you are probably in trouble. Because celebrities are, by
definition, people whose appearance, voice, and personal habits are scrutinized
and publicized, this means that if you imitate any part of a celebrity’s
“persona”—including his or her appearance, voice, singing voice, name,
nickname, or signature—sufficiently well that the material which embodies
the imitation “works,” you have infringed that celebrity’s right of publicity.

 

Even though right-of-publicity law
still varies widely from one state to another, and the laws of some states are
more restrictive than others, book publishers have to comply with the most
stringent standards because their books are distributed and sold throughout the
United States. You may be able to use a celebrity’s name to sell doughnuts in a
state that has a lenient right-of-publicity law, because doughnuts are
advertised and sold only locally. The same is not true of books. This means
that an ad for a book that infringes a celebrity’s rights in any state is
unusable; being sued anywhere is as bad as or worse than being sued at home.
The most practical path is to try to stay within the narrowest
right-of-publicity restrictions that exist anywhere in the United States, or to
eliminate any potential problems by getting the celebrity’s permission to use
her or his name or likeness.

 

Remember that right-of-publicity
law is often surprising. For instance, in some states the right of publicity is
a “descendable” right; in those states, under certain circumstances, a famous
person’s heirs can continue to exclusively control and profit from the
commercial exploitation of that person’s identity even after the person’s
death. This is unlike the laws of privacy or defamation and underlines the fact
that the right of publicity is a property right, something like trademark
ownership. Just as property can be passed to heirs, so can the right of
publicity.

 

Think of it this way: People who
have created commercially lucrative names or likenesses are not likely to take
kindly to other people who try to capitalize on their hard‑won fame
without their permission. It’s nice to get to know celebrities, but be careful
that you don’t meet them in court.

 

Lee Wilson has been an
intellectual-property lawyer for more than 20 years. She is the author of <span
class=8StoneSans>The Copyright Guide
and several other books including, most recently, <span
style=’font-size:11.0pt’>Fair Use, Free Use, and Use by Permission: How to
Handle Copyrights in All Media
, from which this article is
derived. The book is available in bookstores and can be ordered from Allworth
Press via 800/491-2808 or www.allworth.com, which offers a full description, a
table of contents, and reviews.

 

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