Right of Publicity

Disclaimer; The information presented here is general information only and is not legal advice. The right of publicity exists under state law, and the scope of the right of publicity varies from state to state. Furthermore, each situation is unique, and these individual circumstances cannot possibly be taken into account by any website. Determining whether a proposed use of a celebrity name, photograph, or likeness is acceptable, or whether a right of publicity violation exists in your specific situation requires an analysis of the details of your situation by an intellectual property lawyer. Please contact me to discuss your specific situation.

What is Protected by the Right of Publicity?

The right of publicity protects the commercial value of a person’s identity. The right of publicity is violated by the appropriation of the commercial value of a person’s identity by using the person’s name, likeness, or some other indicia associated with that person for commercial gain.

Other indicia associated with a celebrity may include a variety of things which have become associated with a specific celebrity. For example, a robot resembling Vanna White turning letters on a game show resembling Wheel of Fortune in an advertisement for electronic products made by Samsung was found to violate Vanna White’s right of publicity. White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir.1992). As another example, Johnny Carson was found to have a right of publicity in the phrase used to introduce his appearances. Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983).

Who is Protected by the Right of Publicity?

Since the right of publicity exists under state law rater than federal law, the extent to which a person is entitled to protection varies from state to state. In Pennsylvania, the right of publicity is defined by 42 Pa.C.S.A. §8316. This statute protects people who have developed commercial value in their name or likeness through the investment of time, effort, and money. The scope of protection in other states may be different.

Does the Right of Publicity Continue After Death?

In some states, the right of publicity continues after the person holding the right of publicity dies. In Pennsylvania, the ability to sue for violations of the right of publicity ends 30 years after the death of the person holding the right of publicity. Other states may apply different time periods. In some states, the right of publicity terminates with the death of the person holding that right.

Fair Use of Celebrity Images, Names, Photographs, and Likenesses

News Reporting and Commentary

The right of publicity is limited by the First Amendment to the US Constitution, which protects freedom of expression.

Names, likenesses, photographs, and images of celebrities and others holding rights of publicity may not be used to advertise goods or services. Such names and likenesses may not be placed on merchandise marketed by the user, or used in connection with services provided by the user.

However, names, likenesses, photographs, and images of celebrities may be used for news reporting, commentary, entertainment, or for literary works, regardless of whether those works are fiction or nonfiction. They may also be used for advertising which is incidental to uses for these purposes.

The actions, fashion choices, and other aspects of celebrities is clearly newsworthy, and accordingly receives First Amendment protection. “This First Amendment defense extends to almost all reporting of recent events, as well as to publications about people who, by their accomplishments, mode of living, professional standing, or calling, create a legitimate and widespread attention to their activities.” Fraley v. Facebook, Inc., 830 F.Supp.2d 785, 804 (N.D. Cal. 2011).

Some advertisers have attempted to circumvent the right of publicity by “celebrating” or “commemorating” the achievements of professional athletes or other celebrities. Courts see these uses as exactly what they are: an attempt to capitalize on the commercial value of the celebrity’s name and likeness.

Transformative Works

Although a literal depiction of a celebrity is more likely to be found to be a violation of the right of publicity, the inclusion of significant transformative elements makes protection under the First Amendment more likely.

An example of a transformative work is shown by ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003). In ETW, the licensing agent for Tiger Woods sued the publisher of a limited edition print depicting Tiger Woods, previous champions of the Masters Tournament in Augusta, Georgia, and other fixtures of the golf course on which the tournament is played. The court explained that “Rush's work consists of a collage of images in addition to Woods's image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event. Because Rush's work has substantial transformative elements, it is entitled to the full protection of the First Amendment.” Id. at 938.

Photographs of Celebrities on Social Media

The use of photographs of celebrities on social media is subject to the requirements set forth above. Additionally, copyright infringement must be avoided, and copyright licenses should be obtained where appropriate. When celebrities post photographs on social media, those photographs are subject to the terms of use of that social media platform, which may permit sharing of the photograph in certain contexts.

The highly subjective nature of the right of publicity, the variation from state to state, and the existence of some disagreement among various courts about the proper balance of the right of publicity and the First Amendment makes the right of publicity tricky. Please do not hesitate to contact me so that I can help clarify the issues in your situation.