The Right of Publicity
The right of publicity is the right to control the commercial exploitation of a person's name, image or persona.
By Rich Stim
Are you creating a website or blog devoted to celebrities? Are you using celebrities or other "real" people to endorse your site? If so, you need to consider the right of publicity.
The right of publicity is the right to control the commercial exploitation of a person's name, image or persona. This right is traditionally associated with celebrities because the name or image of a famous person is used to sell products or services. For example, it is much easier to sell a t-shirt if there is a picture of Michael Jackson or Madonna on it. However, the unauthorized use of the image of Michael Jackson or Madonna for these purposes would infringe their right of publicity. This right only extends to commercial exploitation. Information uses such as articles at celebrity websites are permissible.
The use of the name, likeness or persona for news, information, or public interest purposes is not a violation of the right of publicity. For this reason, Taylor Swift cannot prevent the use of a photo of her in the National Enquirer. The right of publicity is not only for celebrities. Any person whose name or image is used to sell products may claim a misappropriation of this right. For example, if a child's photograph is taken and used to sell toys, that child could claim a misappropriation of the right of publicity. It is for this reason that all models or persons used in advertisements or endorsements sign consent or release agreements. For a payment the model grants a right to use the image.
Derived from the right to privacy
The right of publicity grew out of the general principles of invasion of privacy that prohibit using a person’s name or likeness to gain a benefit. Within the past few decades, the right of publicity has emerged as an independent type of claim that a person can make when his or her name or likeness is used for commercial purposes. Although the right of publicity is commonly associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image to sell products. This right also prohibits any implication that a person endorses a product (without the person’s permission).
The right extends to identifiable voices
The right of publicity extends to a performer’s identifiable voice. For example, in two separate cases, advertisements that used vocal performances that sounded like singers Tom Waits and Bette Midler were found to violate the singers’ rights of publicity. In both of these cases, the advertising agency had sought permission from the performer and, when it was not granted, hired someone to deliberately imitate the singer’s voice—a good example of what not to do. As a general rule, if your performer’s voice mimics a well-known performer, either accidentally or intentionally, don’t use it.
It may be descendible
Like other intellectual property rights, the owner of the right of publicity can exclude others from using the property. However, unlike other forms of intellectual property, the right of publicity is not always "descendible" (that is, it does not always survive the death of the person who owns the right.) For example, a copyright lasts for the life of the author plus fifty years. However, only about a dozen states recognize that the right of publicity survives death. Tennessee, the home of the late Elvis Presley, was one of the first states to recognize that the right of publicity could be passed to survivors. It is for this reason that the estate of Elvis Presley still controls the right to merchandise the name and images of the rock and roll star. Similarly, California recognizes the survivability of the right and the estate of Marilyn Monroe acquired the right to exploit her name and likeness following her death.
The right of publicity is a matter of state law. Some states, such as California, Florida, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia and Wisconsin have passed statutes regulating these rights. Other states do not have "right of publicity" statutes but have established common law rights under caselaw. Some states have neither a statute or caselaw regarding the right of publicity.
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