Understanding The Right of Publicity

Understanding The Right of Publicity

Jun 05, 2014
Understanding right of publicity

What is the Right of Publicity?

The right of publicity is an intellectual property (IP) right that many people do not know about or do not understand. This is in large part because of its recent origin and the rights afforded to individuals vary by state. The right of publicity is a right that all people have to control the commercial exploitation of their images or personas, i.e., name, portrait, picture, photo, signature, etc. The source of the right of publicity stems from privacy laws, common law, and state statutes. Some states, like California, have broad rights that give individuals great protection, whereas other states, like New Hampshire, have minimal laws addressing the right of publicity.

If you have heard about the right of publicity, it is likely with regards to someone famous, where a third party is using an image or the likeness of a famous person without obtaining the permission to endorse their product.  Depending on the state, one has the right to stop the third party from using his/her image and potentially be granted a financial remedy owed to him/her. Additionally, because a celebrity’s image can also serve as a trademark, the Lanham Act Sect. 43(a) prohibits the false endorsement, sponsorship, and affiliation of a trademark, allowing the celebrity to gain an injunction against a third party infringer.

Recent Cases - College Athletes

Most recently, the right of publicity has been raised in the context of protecting the rights and interests of college athletes. While I won’t go into extreme detail on these cases here, if you’re interested in checking them out: Keller v. Electronic Arts, Inc. and Hart v. Electronic Arts, Inc. The facts and issues of these cases were essentially the same, but had two very different outcomes. The defendant, Electronic Arts, Inc., produced a video game series on NCAA Football. Plaintiffs, who were college football athletes, alleged that the “virtual players [in the game] are nearly identical to their real-life counterparts: they share the same jersey numbers, have similar physical characteristics and come from the same home state.[1]” Defendant raised First Amendment defenses, claiming the First Amendment protected the use of the players’ likenesses because the transformative elements of the entire game were so great that it outweighed the value the Plaintiffs’ personas gave to the game.

How did the courts decide?

In the Keller case, brought in California District Court (a state where the right of publicity law is broad), the court held for the Plaintiff. In the Hart case, however, brought in New Jersey District Court, the court agreed with the Defendant, vindicating the transformative argument under the First Amendment.

These differing outcomes support the earlier observation that states have differing views of how broad and narrow one’s right of publicity will be construed.

My Thoughts

The right of publicity acts to safeguard the commercial fruits of personal inspiration rather than allow those with greater financial access to misappropriate one’s persona for commercial benefit. Why should others benefit from your identity, but not you?

Please contact me if you have any questions about the right of publicity at timothy.willis@unh.edu.

-Tim Willis
Licensing Manager, UNHInnovation

Image credit http://videogamerlaw.com/electronic-arts-petitions-u-s-supreme-court-for...

[1] Keller v. Electronic Arts, Inc., 94 U.S,P.Q. 2d at 1132 (N.D. Call. 2010).

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