on Someone Else's Celebrity:
Someone's Name or Likeness in Your Work?
Copyright © 2002 Tonya M. Evans, Esquire. This article may not be copied or distributed without the consent of the author.
DISCLAIMER: The authors are not engaged in rendering legal or other professional services as a result of the information contained in this article, and this article is not meant to constitute legal or other professional advice. If legal or other professional assistance is required, the services of an attorney should be sought.
Cashing in on one's celebrity is big business these days. Salaries for sports and entertainment figures are certainly impressive. But these million-dollar salaries are often dwarfed when compared to the multimillion-dollar deals based on using a person's name or image to endorse a product or service.
This use of a person's name or likeness for commercial gain involves one of the lesser known intellectual property rights - the right of publicity. The right of publicity is a person's exclusive right to use, and to prevent the unauthorized use of, his or her name, likeness, or other aspect of his or her persona (collectively referred to as persona) for commercial gain. The definition of "persona" goes beyond a person's image and can include words or sounds that are intended to remind the audience of the person, a look-alike, a nickname or phrase commonly associated with the person, and even his or her former name. Therefore, the potential for a right-of-publicity claim exists any time you use someone's persona (or an imitation of it) in your book, article, or other literary or artistic work.
The first case to acknowledge the right of publicity was Haelan Laboratories Inc. v. Topps Chewing Gum, Inc. in 1953, in which the court recognized the valuable property right of a baseball player's photograph when used on trading cards. In a prominent right-of-publicity case, White v. Samsung Electronics America, Inc. (1993), the court found that an advertisement which featured a set similar to the Wheel of Fortune show and a robotic Vanna White look-alike infringed Vanna White's right of publicity. The court found in her favor and extended the right of publicity protection to include not only name and likeness but also identity.
In September 2002, Tom Cruise and Nicole Kidman sued Sephora, Inc., a cosmetics company, in a Los Angeles court for allegedly using a picture of them without permission in a brochure to advertise the company's so-called celebrity scents. They sued under several legal theories, including California's common law right of publicity and unfair competition, and under the Lanham Act.
There is no federally protected right of publicity. This right is protected by common law developed by cases in some states and by state statute developed by legislative bodies in others. In fact, some states refer to this right as the right of publicity but others do not; instead, they protect the right under other legal theories such as the right of privacy or unfair competition (defined as appropriating the commercial value of a person's identity by using the person's name, likeness, or other characteristics of identity without consent for purposes of trade.).
Also, while most states protect the rights of both celebrities and noncelebrities, a minority of states protect the right of publicity for celebrities only. The rationale for only protecting celebrities seems to be based on the argument that a noncelebrity's persona has no commercial value. There are some general guidelines and exceptions, however, that have emerged from this piecemeal set of state laws dealing with the right of publicity. In some cases a public figure's heirs have a legal right of publicity in the dead person's name, voice, signature, photograph, or likeness (for example, under California Civil Code 3344.1).
The absence of a federal right-of-publicity law and the wide differences in laws from state to state becomes more and more problematic as technology continues to increase exponentially the ways in which publicity rights can be violated either innocently or with intent. There is talk of a federal law; however, although desperately needed, none exists yet.
Exceptions: The two main exceptions to the right of publicity, the newsworthiness exception and the incidental use exception, are based on the First Amendment's balance between free speech and the right of publicity.
The newsworthiness exception allows a person's name or likeness to be used in a news story without that person's consent as long as the use is considered to be of legitimate public interest or concern. Furthermore, the use cannot mislead the reader into thinking that the person endorses the article, newspaper, book, or whatever vehicle his or her persona appears in. A common way that writers can protect themselves when writing about others is to include a disclaimer making it clear that those others do not endorse the writing.
The exception for incidental use occurs when a person's name is merely mentioned or his or her likeness is used or referred to. If this exception did not exist, the right of publicity could very well stifle creativity. For instance, authors would not be able to authenticate a story line by referring to real people and places. The use should be reasonably related to the content of your article, book, or other literary work. The test is whether the use is of interest or concern to the public. This test extends not only to hard news stories but also to sports, entertainment, and similar pieces.
Uses of Someone's Persona: As discussed above, an individual's persona can be used to advertise a product or service. Such use is considered a commercial use. Commercial speech has been defined as doing no more than proposing a commercial transaction (see Hoffman v. Capital Cities, 2001). Although commercial speech is entitled to some measure of protection under the First Amendment, it is limited. And where the sole purpose of the use is to sell a product or service, no First Amendment protection exists.
Note, however, that it may be permissible to use an individual's persona to help sell a product or service if the use is reasonably related to the content. For instance, Hoffman v. Capital Cities resulted because Los Angeles Magazine used a photograph of Dustin Hoffman's character image Tootsie as an illustration for the article "Grand Illusions" in the "Fabulous Hollywood" issue. Sixteen other stills from familiar movie scenes were also used in the article that discussed 1997 spring fashions. The caption under the picture in question read, "Dustin Hoffman isn't a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels." The magazine did not obtain permission from Hoffman (the subject) or from the copyright owner (who is generally the photographer who took the picture).
The court found that the use was not pure commercial speech because the picture did not appear in a Ralph Lauren ad or a Richard Tyler ad. Furthermore, in terms of the context of the article, the court found that the use combines fashion photography, humor, and editorial comment on classic films and famous actors.
Use of someone's persona may also be permissible if editorial in nature, that is, if used for news reporting; scholarship; or cultural, historical, educational, political, and public interest reasons. The same consideration is given to artistic use in which an individual's name or likeness appears in a work of fiction that incorporates real people. Again, this use is probably permissible as long as the goal is artistic and of public interest and concern rather than for purely economic gain.
Who is Entitled to Sue to Protect the Right of Publicity: Most states require a right-of-publicity claimant to be a living person. But a few jurisdictions, most notably California, allow heirs of a deceased person to sue. For the law in your state, contact an attorney familiar with intellectual property and privacy laws in your area.
Defending a Right of Publicity Claim: Schuyler M. Moore, Esq., explains in his article "Raising Defenses to Right-of-Publicity Claims" that there is no consistent set of defenses to such claims. The absence of clearly defined laws and defenses presents a major issue for writers who expose themselves to potential right-of-publicity claims with the mere mention of another person's name or likeness in a literary work.
Furthermore, even if you successfully defend your use of a person's name or likeness in your manuscript, you still lose by being sued in the first place and having to defend a costly lawsuit. Publishing houses hesitate to expose themselves to such liability; to anticipate and avoid it, they subject manuscripts to legal vetting, which means they review manuscripts thoroughly for legal issues. Self-published authors are certainly not immune from legal liability and should submit their manuscripts to the same vetting process. With the potential for professional and personal liability, a self-published author is at greater risk than a large publishing house, which employs an entire legal department devoted exclusively to these issues. Therefore, if you decide to publish your work independently, you should submit your manuscript to a publishing attorney who can vet it, alert you to possible legal issues, and advise you on the best course of action.
Excerpt from Literary Law Guide for
Authors: Copyright, Trademark, and Contracts in Plain Language