The right of publicity is generally defined as an individual's right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the "individual's identity". Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual's identity for commercial purposes is the principle purpose of this body of law.
Uniform federal law does not currently protect the individual's right of publicity but there have been increasing demands for a federal right of publicity law. Therefore, the right of publicity currently varies from state to state but either common law or statutory law in almost every state protects certain individuals from the unauthorized exploitation of their identity. While in some states the right of publicity is only applicable to a celebrity or public personality there are other states where the right of publicity applies to any individual. However, in a number of states the individual's right of publicity is only protected when the misappropriation of the individual's identity has publicity value - meaning that the individual has previously commercially exploited his/her identity. States have also reached different conclusions regarding whether the right of publicity survives the death of an individual. Generally, in those states that permit survivability it is only permitted for celebrities but even these states differ on how long the right of publicity survives for the deceased celebrity.
Some commentators and states still continue to refer to the unauthorized appropriation of an individual's identity as an invasion of the right of privacy. However, these two bodies of law are usually distinguished as follows. While the right of publicity provides the individual with a property right in his/her identity, the right of privacy protects an individual from the emotional anguish resulting from the publication of private facts that are embarrassing, intimate or portray someone in a false light that is highly offensive. The right of publicity must also be distinguished from defamation in that defamation involves the publication of untruthful information while right of publicity claims usually result from the publication of truthful information.
Who is a Celebrity or Public Personality?
It should not be surprising that most cases involving right of publicity claims involve celebrities or public personalities however; this is probably more a condition of the economics of litigation than the legal rights involved. Any definition of the term "celebrity" is not definitive and is necessarily vague. Frequently a celebrity is defined as a "famous or well-known person". But what determines whether an individual is a well-known or famous person? Some of the difficulties in establishing whether one is a celebrity and therefore protected by the right of publicity include the following.
- Timeframe - if you are recognized as a celebrity do you always remain a celebrity?
- Location - if you are recognized as a celebrity in Brazil does that mean you are also a celebrity in the United States? What if you are famous in Colorado does that mean you are famous throughout the United States?
- Taste - if you are recognized as a celebrity in classical music circles what is your status according to rock music fans?
- Professional or business specialty - if you are a famous medical doctor, author or artist, does this mean you are a celebrity outside your specialty?
First Amendment Protection
The law attempts to strike a balance between an individual's right of publicity and free speech rights to permit specific uses of an individual's identity. One serious difficulty with relying upon First Amendment protection is the legal unpredictability of First Amendment rules. The First Amendment provides a hierarchy of protection under the newsworthiness exception depending upon how the individual's identity is being used. The greatest protection is provided for news, lesser protection is provided for entertainment and fiction and the least protection is available for advertising uses where a portrayal of a real person's identity is used to sell a product or service.
First Amendment protection exists to ensure that the public is constitutionally entitled to know about things, people and events that affect it. The newsworthiness exception includes information about the real world and is generally defined to include:
- current news items, news that has occurred in the past and information that is not strictly news, but is still informative;
- media presentation on "public issues";
- factual, educational and historical material; and
- entertainment and amusement concerning interesting aspects of an individual's identity.
There are two critical questions that must be answered before using an individual's identity under the newsworthiness exception.
- First, is the unauthorized use of an individual's identity really news that is subject to First Amendment protection?
- Second, is there a reasonable connection between the use of the individual's identity and the news that is being conveyed?
The unauthorized use of an individual's identity in connection with a "news" or "public interest" story requires that there be a reasonable relationship between the person's identity and the subject of the story. When this connection exists then the individual's property rights in the right of publicity must yield to the First Amendment. An individual, to succeed on a right of publicity claim, must demonstrate that the property right in his/her identity was merely used as a vehicle to attract attention to the news or entertainment message. Furthermore, an individual cannot use the right of publicity to claim a property right in his/her likeness as reflected in photographs that were taken in a public place to illustrate a newsworthy story. Unauthorized biographies are also protected by the First Amendment; this is because the right of publicity cannot be used to stifle undesired discussion and legitimate commentary on the lives of public persons.
The writing of historical novels or other fiction works that are based on actual people and events would not be possible if an individual's right of publicity legally prohibited such efforts. Courts have generally held that as long as a fictionalized work makes it clear to the reading audience that the work is a one of fiction then there is no infringement of an individual's right of publicity. However, if the creative work purports to be factual and it is in fact fiction, then the individual's right of publicity would be infringed. One difficulty with this distinction is that some courts have failed to distinguish between works that are fictional and those that are factual and have permitted an individual to successfully claim that a fictional work has infringed his/her right of publicity.
The First Amendment permits a publisher to use an individual's name or photograph on a book or magazine cover when the book is about the individual or the magazine contains an article on the individual but the name or photograph should be used in way that accurately represents the content of the publication. When an individual is the subject of a biography or news article it is permissible to use that individual's name and/or likeness in advertising and promoting the publication. A publisher may also use the name and photograph of any persons whose ideas are discussed in a publication in promoting the publication.
First Amendment protection provides a publisher with the ability to publish and advertise "newsworthy" material involving matters of legitimate public concern on an individual. Since books and other publications are distributed widely and because some states only recognize the right of publicity for celebrities while others protect all individuals if their identity is used for commercial advantage it is important for the publisher to be prepared to defend right of publicity claims in all states. The following are some guidelines that relate to the use of an individual's identity that you may find helpful.
- Is an individual's identity implied from the context, even when his/her name is not used?
- Is the individual's name, likeness, photograph, or description being used strictly for commercial purposes?
- Is the individual a celebrity or public personality?
- Is there a purposeful intent to injure the individual?
- Is the celebrity deceased? If yes did the celebrity exploit his/her identity before death?
- Will the publisher derive financial gain from using an individual's identity? If yes, is the individual's identity used to convey newsworthy information of legitimate public concern?
- Should the publisher obtain a written release or license to use the individual's identity?
- Should the publisher have insurance that will lessen the risk of any right of publicity claim?
Finally, it is probably advisable to seek counsel from an attorney experienced in these matters in the event that you are uncertain regarding the use of an individual's identity.