It is easy for anyone with a laptop to take someone's image, manipulate it and insert it into any picture or scenario. And social media is finding new ways to promote products or services using our own friends as selling points. But just because technology allows us to do these things doesn't necessarily mean its legal. In an era where we publicize our daily activity on social media, what rights of publicity and privacy do we have or should we expect?
A case was recently brought against Facebook for creating sponsored ads that use a person's likeness or profile to promote another's goods or services. A court in California stated that Facebook's alleged actions are not protected speech, and that using our likes for commercial advertising is beyond the scope of the California statute's First Amendment exceptions.
In contrast, another court recently determined that Marilyn Monroe's estate could not stop others from using her likeness. This is one of several recent cases that have hit the national news where likenesses are being used without permission. The outcome of the Monroe case depended primarily on the law of the state in which she was domiciled at the time of her death. Because she was living in New York at the time, and not California, for example, her estate had no right of publicity after her death because New York does not recognize descendible rights of publicity. So what does that mean for the rest of us?
What is Right of Publicity?
As a general matter, rights of publicity include protecting a person against the commercial exploitation of one's name, image, and likeness without his or her permission. This form of protection is similar to a trademark right. The second form is a right to privacy, which protects one's right to be left alone-the right not to have one's personality represented to the public without permission.
Rights of publicity are not federal rights. They are state rights, and they vary significantly from state to state. In some states, rights of publicity are governed by statute. In other states, rights of publicity, if recognized, are governed by common law, or judge's decision. In still other states, rights of publicity are governed by both statute and common law. Rights of publicity have their origin in the laws of property, trespass, and intentional tort. As a property right, they may even survive the death of the person. Thus, in a state where such a right is recognized, a deceased person's heirs or successors may retain the right to control the commercial use of the deceased person's name, likeness, and images for some time after his or her death.
Rights Vary by State
The state-by-state treatment of rights of publicity ranges from strong to weak. Recently, there was an attempt to adopt a statutory right of publicity law here in New Hampshire. As with most state laws, it referred only to individuals who were domiciled in the state. New Hampshire's right of publicity law was to be descendible to an individual's heirs or successors for 70 years after his or her death. The bill was sponsored at the request of J.D. Salinger's heirs who expressed concern that his image and name were being used on such items as coffee mugs.
On June 13, 2012, the governor vetoed the bill, and on June 27, 2012, the veto was sustained when the NH Senate was unable to produce sufficient votes to override it. One explanation for the failure of the bill is that it did not specifically carve out any exceptions for legitimate First Amendment rights of artistic free expression. For now, NH residents will have to rely on common law protection that is based on a variety of legal theories, including intentional tort, property, and trespass theories, which is not well-defined and does not survive the death of the person.
Indiana is often referred to as the strongest of the rights of publicity states. There, the right of publicity protects the name, image, and likeness, as well as the signature, photograph, gestures, distinctive appearances, and mannerisms of the person. In Indiana, the right of publicity extends for 100 years after the person's death. California has reasonably strong rights of publicity, which are codified in the Celebrity Rights Act as well as existing in common law. The California statute protects the right of publicity for a celebrity 70 years after death, and does so retroactively for those who died after Jan. 1, 1938.
Another recent famous case involved Chuck Yeager, a resident of California. There, AT&T was using his likeness, as well as his notoriety as the first aircraft pilot to break the sound barrier, to promote their MACH1 and MACH2 services. The court determined that even though AT&T used Chuck Yeager's likeness only in a press release, it was the type of promotional use that the California statute was meant to address. Chuck Yeager was able to stop AT&T from using his likeness.
California, like many other states, has specifically carved out an exception to the right of publicity for legitimate First Amendment rights. Typically, these First Amendment exceptions to rights of publicity include:
Portraying a person in a work of art (painting, movie, song, for example), as long as the work of art is not a commercial advertisement;
Non-commercial uses are exempt (such as news reports, sports, public affairs, and political campaigns);
Use of an author's name in connection with his work (as long as the use is truthful);
Advertisements for any of the above exceptions;
Displays by professional photographers of their work at their places of business.
The right to control one's image or likeness in public use needs to be balanced with the First Amendment rights of artistic expression. While it is debatable whether, and for how long, the rights of publicity should extend past one's death, it does seem appropriate that others should not be able to use your reputation or likeness to promote their commercial products without your permission.
It also seems appropriate that rights of publicity laws should contain exceptions relating to legitimate First Amendment rights of artistic free expression. Additionally, it seems reasonable that educational and newsworthy uses of a person's likeness, especially when they are public figures, should be permitted.
Paul C. Remus is chair of the Patent, Trademark & Licensing Group of Devine, Millimet & Branch, P.A. in Manchester. He can be reached at premus@devine
millimet.com. Kimberly A. W. Peaslee is an associate with the law firm's Patent, Trademark & Licensing Group. She may be reached at kpeaslee@devinemillimet.com. Both can also be contacted at 603-669-1000.
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