An Individual’s Right of Publicity
The Right of Publicity is an individual’s right to control the commercial use and value of one’s personal interests or identity and prevent exploitation of that value. Typically, an individual’s personal interests are referred to as his name, image and likeness. So when does the Right of Publicity become an issue? Usually, if a business intends to use a celebrity’s name, voice, photograph or image in advertisements. For example, a business may use an impersonator to mimic a famous artist’s voice. Both Beth Midler and Tom Waits won lawsuits when a business used sound-alike performers to duplicate their voices for advertising jingles. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1989), Waits v. Frito-Lay, Inc., 978 F.2d1093 (9th Cir. 1992).
However, the Right of Publicity usually applies to all individuals, not just celebrities. As a result, the Right of Publicity can affect non-celebrities in their everyday lives. For example, have you ever been asked to sign a waiver by your child’s school or summer camp so that they can use photographs of your child in their advertisements or on their websites? Schools request these waivers to ensure that they are not violating your and your child’s Right of Publicity.
Another important factor to remember is that Right of Publicity laws are state laws and can, therefore, vary from state to state. In Pennsylvania, the Right of Publicity is a common law tort and not found in any statute. Both Pennsylvania state courts and federal courts have held that Pennsylvania recognizes a Right of Publicity. Hogan v. A.S. Barnes and Co., 114 U.S.P.Q. 314( Phila. Cty. Ct Com. Pl. 1957), Rose v. Triple Crown Nutrition, Inc., 2007 U.S. Dist. LEXIS 14785 (M.D.Pa. 2007). The courts have held that in Pennsylvania an individual is granted an exclusive right to control the commercial value of their name or likeness. The right is different from the tort of invasion of privacy which does not require that a defendant appropriate another’s name for commercial gain, only that the name is used for another’s benefit.
In addition, the Right of Publicity is different from other intellectual property rights such as copyright or trademark law. Copyright law is a federal law that protects an author’s rights to his “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). In effect, if you write down, or record, an original work, then you own the copyright. If you write down an original story, you own the copyright. If you record an original song, you own the copyright.
The right of publicity is more similar to trademark law since both seek to protect the public from unfair competition or misappropriation of a person’s mark or likeness. The public is assured that the endorsement of a product by an individual is legitimate. In addition, an individual does not have their good name or identity, which they have worked to make known to the public, tarnished by an unauthorized use of their name.
While some lower courts have dealt with the Right of Publicity, the United States Supreme Court has only reviewed the law once in Zacchini v. Scripps – Howard Broadcasting, 433 U.S. 562 (1977). In that case, Zacchini, a famous human cannonball, sued a local television news company for televising his entire 15-second performance on its news show. Zacchini alleged that the public was less likely to pay to see his show if the entire act had already been broadcast on the news. The Court ruled that Zacchini’s right of publicity had been violated.
To ensure that you or your business does not violate an individual’s Right of Publicity, you should obtain their written permission to use the individual’s image, likeness or voice for advertising products or services. Fair use is not a defense to claims of violation of the Right of Publicity so if you are going to use a person’s image for commercial interests, i.e., make money from the use, you need to obtain permission from the individual to use their image.