Right of Publicity Lecture

8/8/2019 Right of Publicity Lecture

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g o u c yg o u c y

Presented by Laura PratherPresented by Laura Prather


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1 Traditionall a subset of Invasion of Privac .1 Traditionall a subset of Invasion of Privac .

-- Misappropriation prong of Invasion of PrivacyMisappropriation prong of Invasion of Privacy2) First recognized in2) First recognized in Haelan Labs, Inc.Haelan Labs, Inc. v.v.ToppsTopps

recognizing baseball players right of publicity inrecognizing baseball players right of publicity intrading cards.trading cards.

33 Common law Ri ht of PublicitCommon law Ri ht of Publicit-- Property right. Damage is commercial injury toProperty right. Damage is commercial injury tobusiness value of personal identity.business value of personal identity.

--5) Codification of law through state statutes5) Codification of law through state statutes6) Lanham Act6) Lanham Act 4343 false endorsement (15 U.S.C.false endorsement (15 U.S.C.


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Difference between Right of PrivacyDifference between Right of PrivacyRig t o Pu icityRig t o Pu icity

Right of Privacy is a Personal right; the right to be leftRight of Privacy is a Personal right; the right to be leftalone.alone. Generally thought of as a privacy right belonging to nonGenerally thought of as a privacy right belonging to non--

celebritiescelebrities

Damage is to human dignity. Measured by mental distress.Damage is to human dignity. Measured by mental distress. g t o u c ty s roperty r g t.g t o u c ty s roperty r g t.

Generally extends to celebrities as a property right, althoughGenerally extends to celebrities as a property right, althoughthere are nonthere are non--celebrity cases, as well.celebrity cases, as well.

But, . . . courts sometimes blur the two.But, . . . courts sometimes blur the two.


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False Endorsement under LanhamFalse Endorsement under LanhamActAct 43 a43 a

Occurs when a person is connected with a product or service in such a wayOccurs when a person is connected with a product or service in such a way

approval of the product or service.approval of the product or service.** Wendt v. Host Intl, IncWendt v. Host Intl, Inc., 125 F.3d 806 (9th Cir. 1997) (robotic figures., 125 F.3d 806 (9th Cir. 1997) (robotic figuresresembling actors in Cheers television show used to advertise barsresembling actors in Cheers television show used to advertise bars

** AbdulAbdul--Jabbar v. GMJabbar v. GM, 85 F.3d 407 (9th Cir. 1996)(athletes name and, 85 F.3d 407 (9th Cir. 1996)(athletes name andaccomplishments used in television commercials for automobiles)accomplishments used in television commercials for automobiles)

** Waits v. FritoWaits v. Frito--Lay, Inc.Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (imitation of, 978 F.2d 1093 (9th Cir. 1992) (imitation of

** White v. Samsung Electronics AmericaWhite v. Samsung Electronics America, 971 F.2d 1395 (9th Cir., 971 F.2d 1395 (9th Cir.1992)(robot resembling television celebrity Vanna White, turning1992)(robot resembling television celebrity Vanna White, turningletters in what appeared to be Wheel of Fortune game show inletters in what appeared to be Wheel of Fortune game show intelevision commercial for electronicstelevision commercial for electronics

** Allen v. National Video, IncAllen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y.., 610 F. Supp. 612 (S.D.N.Y.1985)(photograph of Woody Allen look1985)(photograph of Woody Allen look--alike in national advertisingalike in national advertisingcampaign for video club)campaign for video club)


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Interest ExceptionInterest Exception

(3)(3) First AmendmentFirst Amendment


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Newsworthiness/Public InterestNewsworthiness/Public InterestExceptionException

TEST:TEST: Applies when one uses anothers identity inApplies when one uses anothers identity in

(a)(a) matters that are newsworthy ormatters that are newsworthy or(b)(b) which are of public or social interest, includingwhich are of public or social interest, including

works of arod and creat ive works of art.works of arod and creat ive works of art. Case Examples:Case Examples:

** New York Magazine v. Metropolitan Transport AuthorityNew York Magazine v. Metropolitan Transport Authority, 987 F., 987 F.

Supp. 254 (S.D.N.Y. 1997), affd in part, vacated in part onSupp. 254 (S.D.N.Y. 1997), affd in part, vacated in part on, . ., . .

mocking mayor of New York City subject to both the publicmocking mayor of New York City subject to both the publicinterest and incidental use exceptions)interest and incidental use exceptions)

** New Kids on the Block v. News America Publishing, Inc.New Kids on the Block v. News America Publishing, Inc., 971, 971

. r. newspaper survey pro ec e un er. r. newspaper survey pro ec e un ernews exception).news exception).


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First Amendment v. Right ofFirst Amendment v. Right ofPu icityPu icity

First Amendment v. Right of PublicityFirst Amendment v. Right of Publicity

Issue:Issue: How to protect a form of expression whose liberty isHow to protect a form of expression whose liberty issafeguarded by the First Amendment and societyssafeguarded by the First Amendment and societysinterest in protecting a persons proprietary right ofinterest in protecting a persons proprietary right of

..

U.S. Supreme CourtU.S. Supreme Court has only heard one case on this subject and that washas only heard one case on this subject and that wasin 1977 inin 1977 in Zacchini v. ScrippsZacchini v. Scripps--Howard Broadcasting Co.Howard Broadcasting Co., 433 U.S. 562., 433 U.S. 562.

acts:acts: acc n , t e per ormer o t e uman cannon a act, sueacc n , t e per ormer o t e uman cannon a act, suean Ohio television station that secretly videotaped and broadcast his entirean Ohio television station that secretly videotaped and broadcast his entireperformance.performance.

Held:Held: the First Amendment did not protect the television stationthe First Amendment did not protect the television station

.. Rationale:Rationale: Preventing unjust enrichment by the theft of goodwill. TherePreventing unjust enrichment by the theft of goodwill. There

was no social purpose served by having the television station get somethingwas no social purpose served by having the television station get somethingfor free that had market value and for which others would normally pay tofor free that had market value and for which others would normally pay to

..


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Circuits are split on resolution of conflict betweenCircuits are split on resolution of conflict betweenFirst Amendment and Right of PublicityFirst Amendment and Right of Publicity

2nd Circuit Balancing test2nd Circuit Balancing test Case:Case: ogers v. r maogers v. r ma , 875 F.2 994 2 Cir. 1989, 875 F.2 994 2 Cir. 1989

Ginger Rogers brought suit against the producers of a movieGinger Rogers brought suit against the producers of a moviecreated and directed by Federico Fellini entitled Ginger and Fredcreated and directed by Federico Fellini entitled Ginger and Fred a film about two fictional Italian cabaret performers who imitateda film about two fictional Italian cabaret performers who imitatedRogers an Fre Astaire.Rogers an Fre Astaire.

Conflict:Conflict: Rogers right to protect her name and the right of othersRogers right to protect her name and the right of others

to express themselves freely in their own artistic work.to express themselves freely in their own artistic work.

endorsement claim (endorsement claim (43(a))43(a)) Test:Test: Lanham Act should only apply to artistic worksLanham Act should only apply to artistic works

where the public interest in avoiding consumer confusionwhere the public interest in avoiding consumer confusion

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Circuits are split on resolution of conflict betweenCircuits are split on resolution of conflict between

rs men men an g o u c yrs men men an g o u c y

8th Circuit Balancing test8th Circuit Balancing test Case:Case: . . . str ut on an ar et ng, nc. v. a or eague. . . str ut on an ar et ng, nc. v. a or eague

Baseball Advanced Media, L.P.Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), 505 F.3d 818 (8th Cir. 2007) Producer of fantasy major league baseball games sought declaratoryProducer of fantasy major league baseball games sought declaratory

judgment that it had the right to make use of names and statisticsjudgment that it had the right to make use of names and statisticso p ayers in its games.o p ayers in its games.

Conflict:Conflict: Players Associations and their licensees right of publicityPlayers Associations and their licensees right of publicity

in players names and statistics and First Amendment.in players names and statistics and First Amendment.

Test:Test: Producers First Amendment right to useProducers First Amendment right to useplayers names and information took precedence overplayers names and information took precedence overplayers rights to be protected from unauthorized publicity.players rights to be protected from unauthorized publicity.


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(cont.)(cont.)

9th Cir. Actual Malice test9th Cir. Actual Malice test Case:Case: o man v. ap ta t es , nc.o man v. ap ta t es , nc., 255 F.3 1180 9t, 255 F.3 1180 9t

Cir. 2001)Cir. 2001) Dustin Hoffman brought suit against the publisher ofDustin Hoffman brought suit against the publisher ofLos Angeles Magazine based on the magazines unauthorized use ofLos Angeles Magazine based on the magazines unauthorized use ofa still photo from the movie Tootsie to create a computera still photo from the movie Tootsie to create a computer--generate picture t at epicte im wearing as ion esigner sgenerate picture t at epicte im wearing as ion esigner swomens clothes.womens clothes.

Test:Test: Because Hoffman was a public figure he had toBecause Hoffman was a public figure he had torove b clear and convincin ev idence that L.A. Ma azinerove b clear and convincin ev idence that L.A. Ma azineintended to create the false impression in the m inds of theintended to create the false impression in the m inds of the

readers that when they saw the altered Tootsiereaders that when they saw the altered Tootsiephotograph they w ere seeing Hoffmans body.photograph they w ere seeing Hoffmans body.

alteration of the photo was an exploitative commercial use notalteration of the photo was an exploitative commercial use notentitled to First Amendment protection, finding that the article as aentitled to First Amendment protection, finding that the article as awhole was a combination of fashion, photography, humor andwhole was a combination of fashion, photography, humor and

..


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(cont.)(cont.)

Transformative Use TestTransformative Use Test (California Supreme Court)(California Supreme Court) apply toapply to

by the First Amendmentby the First Amendment Case:Case: Comedy III Productions, Inc. v. Gary Saderup, Inc.Comedy III Productions, Inc. v. Gary Saderup, Inc., 21, 21

P.3d 797 (Cal. 2001)P.3d 797 (Cal. 2001) Saderup, a charcoal artist of celebrities,Saderup, a charcoal artist of celebrities,create a rawing o T e T ree Stooges or t e pro uction ocreate a rawing o T e T ree Stooges or t e pro uction olithographic prints and silk screen images on tlithographic prints and silk screen images on t--shirts. The owner ofshirts. The owner ofthe rights to the Stooges brought suit against Saderup underthe rights to the Stooges brought suit against Saderup underCalifornia law.California law.

Test:Test: I f the artistic work contains significantIf the artistic work contains significanttransformative elements or the value of the work does nottransformative elements or the value of the work does notderive primarily from the celebritys fame, then it w ill bederive primarily from the celebritys fame, then it w ill be

rotected b the First Amendment and w ithstand the ri htrotected b the First Amendment and w ithstand the ri ht

of publicity challenge.of publicity challenge. Held:Held: No protectionNo protection


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Types of Damages in Right ofTypes of Damages in Right ofPu icity CasesPu icity Cases

11 Fair Market value of identit in the commercialFair Market value of identit in the commercialsetting in which it was used, e.g., endorsement fees.setting in which it was used, e.g., endorsement fees.

2)2) Damage to professional standing and publicity value,Damage to professional standing and publicity value,

advertising.advertising.

3)3) Unjust enrichment and infringers profits.Unjust enrichment and infringers profits. o e:o e: an ge a ypes o ese amages no up ca vean ge a ypes o ese amages no up ca ve

4)4) May have right toMay have right to punitivepunitive damages under state lawdamages under state lawif there was a premeditated or knowing use of plaintiffsif there was a premeditated or knowing use of plaintiffs

ent ty.ent ty. ee raz er v. ou or a ru ses,ee raz er v. ou or a ru ses,U.S.P.Q.2d 1470 (E.D.Pa. 1991)U.S.P.Q.2d 1470 (E.D.Pa. 1991)


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Right of Publicity for DeadRight of Publicity for DeadCelebritiesCelebrities

celebritys lifecelebritys life lif rni ill in 1 4 ll win h ir rlif rni ill in 1 4 ll win h ir r

those bequeathed the rights) to cash in on theirthose bequeathed the rights) to cash in on their

celebrity postcelebrity post--mortemmortem California passed another bill in 2007 clarifyingCalifornia passed another bill in 2007 clarifying

that the law applied to celebrities who died priorthat the law applied to celebrities who died prior

to t e enactment o t e Act wit in 7 yearsto t e enactment o t e Act wit in 7 years Other states have also considered (and, in someOther states have also considered (and, in some

ns ances, passe s m ar eg s a on.ns ances, passe s m ar eg s a on.


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The California Dead Celebrities Bill only applies to celebrities whoThe California Dead Celebrities Bill only applies to celebrities who

were domiciled in California at the time of their deathwere domiciled in California at the time of their death

Central District of California court found that Marilyn Monroe wasCentral District of California court found that Marilyn Monroe wasdomiciled in New York at the time of her death (which does notdomiciled in New York at the time of her death (which does notcurrently recognize postcurrently recognize post--mortem rights of publicity) and, thus, couldmortem rights of publicity) and, thus, couldnot bequeath her right of publicity to her heirs postnot bequeath her right of publicity to her heirs post--mortem.mortem.

Similarly, inSimilarly, in Experience Hendrix v. The James Marshall HendrixExperience Hendrix v. The James Marshall HendrixFoundationFoundation, D.C. No. CV, D.C. No. CV--0303--0346203462-- SZ, the Ninth Circuit found thatSZ, the Ninth Circuit found thatthe estate of Jimi Hendrix could not bring a right of publicity claimthe estate of Jimi Hendrix could not bring a right of publicity claimunder the Washington Personality Rights Act because Jimi Hendrixunder the Washington Personality Rights Act because Jimi Hendrix

was om c e n ew or a e me o s eawas om c e n ew or a e me o s ea


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Texas Property CodeTexas Property Code Chapter 26Chapter 26 s a s es proper y r g n e use o an n v ua s name, vo ce,s a s es proper y r g n e use o an n v ua s name, vo ce,

signature, photo, or likenesssignature, photo, or likeness after the death of the individual.after the death of the individual. (Right(Rightexpires 50 years after the individuals death).expires 50 years after the individuals death). Only applies when a commercial value exists at the time of his or her deathOnly applies when a commercial value exists at the time of his or her death

.. It is transferable.It is transferable. Heirs can register that they own a property right with the secretary of stateHeirs can register that they own a property right with the secretary of state

and such registration is prima facie evidence of a valid claim to a propertyand such registration is prima facie evidence of a valid claim to a property..

The statue prohibits one from unauthorized use (1) in connection withThe statue prohibits one from unauthorized use (1) in connection withproducts, merchandise, or goods; or (2) for the purpose of advertising,products, merchandise, or goods; or (2) for the purpose of advertising,selling or soliciting the purchase of products, merchandise, goods orselling or soliciting the purchase of products, merchandise, goods or

.. Exceptions: (1) use in a play, book, film, radio program or tv program; (2)Exceptions: (1) use in a play, book, film, radio program or tv program; (2)

a magazine or newspaper article; (3) political or newsworthy materials; ora magazine or newspaper article; (3) political or newsworthy materials; or(4) single and original works of fine art.(4) single and original works of fine art.


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.. LiabilityLiability (1) actual damages or $2500, whichever is greater; (2) amt. of profits from(1) actual damages or $2500, whichever is greater; (2) amt. of profits from

..

CaseCase Elvis Presley Enterprises, Inc. v. Capece (S.D. Tex. 1996)Elvis Presley Enterprises, Inc. v. Capece (S.D. Tex. 1996) Dispute between aDispute between anightclub named The Velvet Elvis and the Presley Estate. Court held:nightclub named The Velvet Elvis and the Presley Estate. Court held:

(1) Club violated the right of publicity of Presleys Estate when it used pictures of(1) Club violated the right of publicity of Presleys Estate when it used pictures ofPresley, references to his home, and use of phrases linked to him in advertising forPresley, references to his home, and use of phrases linked to him in advertising fortheir nightclub.their nightclub.

(2) Service mark Velvet Elvis created a likelihood of confusion.(2) Service mark Velvet Elvis created a likelihood of confusion. aro y s no a e ense o ra emar n r ngemen u ra er ano er ac or o earo y s no a e ense o ra emar n r ngemen u ra er ano er ac or o e

considered, which weighs against a finding of likelihood of confusion. Trial court saidconsidered, which weighs against a finding of likelihood of confusion. Trial court saidparody provided protection; 5parody provided protection; 5thth Circuit said the trial court misapplied the doctrine.Circuit said the trial court misapplied the doctrine.The 5The 5thth Circuit found that the parody could have been accomplished without the useCircuit found that the parody could have been accomplished without the useof Elviss nameof Elviss name so, it is irrelevant in this case.so, it is irrelevant in this case.

he case was remanded for the trial court to enter an injunction of the use of Thehe case was remanded for the trial court to enter an injunction of the use of TheVelvet Elvis mark.Velvet Elvis mark.

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