Copyright is, broadly speaking, the legal right to control the use of creative works that one has authored, or to which one has purchased these rights. This includes the right to copy, reproduce, exhibit, distribute, and otherwise exploit the creative work, especially for commercial gain. A few exceptions apply, including the various forms of Fair Use, which allows the use of copyrighted material for certain specific purposes. Another important legal principle, which can act as an exception to copyright, is the right of publicity. This involves the right of an individual to control the use of their own name and likeness for commercial and other forms of gain.
Right of Publicity
A freelancer may obtain a license from a copyright owner to use a photograph in a project, or the freelancer may find a photograph that the photographer has placed under a Creative Commons license or in the public domain. If that photograph depicts one or more persons, however, the right of publicity might prevent even the copyright owner from using the photograph.
Unlike copyright law, which operates at the federal level and therefore has the same impact throughout the entire United States, the right of publicity derives from state law. This means that the law in Texas might be different from the law in Oklahoma. Currently, only twenty-seven states (including Texas and Oklahoma) recognize the right of publicity in some form.
Some states have enacted statutes dealing with the right of publicity, which provide reasonably clear statements of what the right is and what it protects. Other states rely on common law, the system of law that we inherited from jolly olde England, in which legal principles are essentially developed by tradition and modified over the ages by court decisions. Texas has a mixed system, with both statutory and common law rights of publicity. I will get to those in a moment.
Violations of the Right of Publicity
In a very general sense, an individual may be able to claim a violation of the right of publicity in several ways:
– Commercial use of their likeness without consent: With regard to photographs and other visual representations of a person, this generally applies to individuals in non-public settings, where they have a reasonable expectation of privacy. For photoshoots, film shoots, and similar projects, model releases typically include a release of the right of publicity. Paparazzi photographs of celebrities in public, as well as many photographs taken in public places, are not protected by the right of publicity. Courts have also found that images taken in a seemingly private setting are not subject to the right of publicity if they are sufficiently “newsworthy.” This often applies to photos taken at crime and accident scenes.
– Commercial use of their name without consent: This applies to public figures (celebrities, public officials, and others generally known to some significant portion of the public), but it could apply to non-public figures in some circumstances as well. In a typical case, it prohibits the unauthorized use of an individual’s name in a way that falsely or inaccurately suggests the endorsement of a viewpoint or product.
– “False light” use of name or likeness: This involves the use of a person’s name or likeness in a way that portrays them in a way that is false or inaccurate, and that damages the person’s reputation. It is similar to defamation in a number of ways.
– Invasion of privacy: This is sometimes also known as “intrusion on physical solitude,” and involves the publication, often for financial gain, of images, video, or personal details intended to remain private. The internet phenomenon of “revenge porn” is a prime example of this type of violation of the right of publicity.
– Public disclosure of private facts: Much like the previous example, this involves the disclosure or use of private personal information in a harmful way.
Right of Publicity Cases
The only time the U.S. Supreme Court has weighed in on the right of publicity was in 1977 in Zacchini v. Scripps-Howard Broadcasting Co., when it held a broadcasting company liable for broadcasting footage of Hugo Zacchini’s “human cannonball” act without his permission. The court rejected the defendant’s claims of free speech and freedom of the press under the First and Fourteenth Amendments, finding that the right of publicity superseded both.
Other right-of-publicity claims over the years include:
– A lawsuit by Tom Cruise and Nicole Kidman filed in 2002—after their divorce—against the retailer Sephora, alleging that the company used pictures of them that falsely suggested they endorsed the company’s products.
– A lawsuit by members of the cast of the HBO television series The Sopranos against the retailer Best Buy, filed in 2003, also for allegedly using a publicity picture of the cast in an advertisement. Since the picture was a publicity photo for the show, it is likely that HBO owned the copyright for the picture itself, along with the Sopranos characters played by the actors.
– A 2006 decision from a New York state court, Nussenzweig v. DiCorcia, holding that street photography portraying identifiable individuals without their permission is subject to an “artistic” exception to the right of publicity under the First Amendment.
– A $8.9 million verdict in favor of former NBA player Michael Jordan in August 2015 against a grocery store chain for using his image in a print advertisement.
The Right of Publicity After Death
So far, I have only mentioned the right of living people to assert their own claims for right-of-publicity violations. What about the estates of deceased people? That is a bit trickier, although it depends on the state.
One of the most famous cases involving an estate’s likeness rights is from the California Supreme Court, which ruled in Lugosi v. Universal Pictures in 1979 that the heirs of Béla Lugosi—better known as the original film Dracula—had no rights to his likeness after his death. This is the case in many other states as well.
California passed a law attempting to grant retroactive likeness rights to Marilyn Monroe’s heirs, but a court found that it did not apply to her because she was a resident of New York when she died. Tennessee law allows likeness rights to pass to one’s heirs, so Elvis Presley’s name and image were, until recently, still controlled by his estate. Texas also allows limited likeness rights after death.
Under Texas law, both living and dead individuals are protected by the right of publicity, albeit in different ways. A living individual may claim a right-of-publicity violation under the common law doctrine of “misappropriation.” This requires proof of several elements:
– The defendant appropriated the plaintiff’s name or likeness without permission;
– The defendant did so because of the inherent value of the plaintiff’s name or likeness, not because it was newsworthy;
– The plaintiff is clearly identifiable in the publication; and
– The defendant received some benefit, not necessarily financial, as a result of the publication.
After death, an individual’s right of publicity is transferable and descendible (meaning it can be included as an asset in one’s will) under a Texas statute known as the Buddy Holly Bill. It applies to a person’s name, likeness, image, signature, and voice. It limits prohibited activity to unauthorized use “in connection with…or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services.”
The law only applies to individuals who died on or after January 1, 1937, and whose “name, voice, signature, photograph, or likeness has commercial value at the time of his or her death or comes to have commercial value after that time.” The owner of the rights conferred by this law must register with the Texas Secretary of State for the rights to remain valid and enforceable. All exclusive rights under this law expire after the fiftieth anniversary of the person’s death. To use Buddy Holly as an example, since he died on February 3, 1959, any rights available to his heirs under this law expired on February 4, 2009.
Coming soon: More exciting (to me, anyway) copyright news, anti-SLAPP laws and defamation, some stuff about trademarks, and my ongoing quest to understand software in a way that is helpful to y’all.
Photo credits: “Pappers” by Flashflash [CC BY-SA 3.0, GFDL], via Wikipedia; “Free stock photo of black-and-white, night, street” by Andreas Winter [Public domain, CC0 1.0], via Pexels; “Michael Jordan at Boston Garden” by Steve Lipofsky at basketballphoto.com [GFDL or CC-BY-SA-3.0], via Wikimedia Commons; “Buddy Holly Brunswick Records” by Brunswick Records [Public domain], via Wikimedia Commons.