I. Publicity Rights
A. State of Washington
The State of Washington gained "publicity" with the April 2, 1998, signing of a bill protecting what is known as publicity or persona or personality rights.
- New Act: The new Act provides that every person (including individuals and entities) has a property right in the use of one's name, voice, signature, photograph or other likeness in any medium or any manner. This property right generally continues throughout one's life and for ten years after death. For those whose personas have commercial value, and who died after January 1, 1948, this right continues for 75 years after death. These rights are also fully transferable and descendible upon death. No registration is required.
- Remedies: The statute provides for the remedies of injunctive relief, the destruction of infringing material, the greater of statutory minimum damages ($1,500) or actual damages, and attorneys' fees and costs.
The position of Washington courts prior to the statute is illustrated in a quote from the court in Joplin Enterprises v. Allen, F. Supp. 349, 351 (W.D. Wash. 1992) as follows:
This Court is not willing to extrapolate, from Washington's recognition of a right to privacy, a descendible right of publicity applicable to this case or a remedy for interference with such a right under Washington law, especially given the fact that the Washington State Constitution places an even higher value upon the principle of free speech than the Federal Constitution.
The new Act brings clarity to the law by affirmatively recognizing that there are actual "publicity" property rights and that there is a requirement of consent for use required, with actual remedies, and with delineated defenses and safe harbors. These defenses against there being considered an infringement of a "publicity" property right, that I term "fair use" defenses, include use for comment, criticism, satire and parody, and uses relating to matters of cultural, historical, political, religious, educational, newsworthy or public interest. Fair use safe harbors also include single and original works of fine art not published in more than five copies and advertisements and sale of rare or fine products (thus a painting, statue or portrait of a famous person not published in more than 5 copies would not be covered). In addition, literary works, theatrical works, musical compositions of films, radio, online and television programs, magazine articles, news stories, public-affairs reports, sports broadcasts and political campaigns are excluded from the Act, if the use does not claim or imply an endorsement.
D. Other States
At the time of the new Act, 25 states had case law recognizing publicity rights. Fifteen other states had passed actual legislation. The states with legislation included California, Florida, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and Wisconsin. The legislation differs in each state with California, Oklahoma, Nebraska and Texas even providing for registration of the rights of deceased persons. The states with case law recognizing publicity rights included Connecticut, Georgia, Hawaii, Illinois, Michigan, Minnesota, Missouri, New Jersey and Pennsylvania.
There is currently no explicit federal right of publicity but such is being discussed. However, the rights of publicity are part of the Lanham Act dealing with trademark and unfair competition issues. We will now look at the rights to publicity afforded through U.S. trademark and copyright law.
A mark will not be subject to federal trademark registration if it consists of or comprises, among other things, the following:
- Immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.
- A name, portrait, signature or other aspects of persona identifying a particular living or deceased natural person, except by written consent; or the name, signature or portrait of a deceased President of the United States during the life of the widow/widower, if any, except by written consent of the widow/widower.
Before using one's name, signature or other aspects of persona, one should recognize there are restrictions from registration. If one is an innocent infringer, then injunctive relief is available. In addition, the court can order destruction of all materials and damages.
III. Copyright Law
With the U.S. joining the Berne Convention, Copyright (Author) rights can be very important in protecting publicity rights especially for the protection of fictitious characters. These protections are often best sought under copyright laws.
The residents of many states now enjoy "publicity" rights to protect against the unauthorized use of one's identity.
In Washington, a person now has a statutory protected property right in the use of his or her name, voice, signature, photograph or likeness. The right is transferable, assignable and licensable, and is descendible to heirs or devisees. Infringers will be liable for civil damages. However, a person's consent to use his or her name, voice, signature, photograph or likeness is not necessary in connection with matters of cultural, historical, political, religious, educational, newsworthy or public interest.