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page looks at 'Rights of Publicity' (aka 'Rights of Celebrity'
or of 'Personality').
It covers -
to the notion of rights of personality and patterns
involving Bette Midler, Princess Di, Tom Waits and others
from North America and the EU
- how much as the rights worth?
Personality Rights is an area of intellectual property
that has gained most attention in the US for protection
of pop culture idols such as Elvis Presley and that poses
interesting challenges for internet publishing.
Works such as Huw Beverley-Smith's exemplary The Commercial
Appropriation of Personality (Oxford: Oxford Uni
Press 2002) and Julius Pinckaers' From Privacy Towards
a New Intellectual Property Right in Persona (The
Hague: Kluwer Law 1996) and note that it has attracted
attention in other jurisdictions regarding both intellectual
property and privacy
protection. A 2003 paper
by Olaf Weber on Human Dignity & the Commercial
Appropriation of Personality: Towards a Cosmopolitan Consensus
in Publicity Rights? and papers in Privacy, Property
& Personality: Civil Law Perspectives on Commercial
Appropriation (Cambridge: Cambridge Uni Press 2005) by
Huw Beverley Smith, Ansgar Ohly & Agnes Lucas-Schloetter
highlight questions of personality as a human right.
A range of US states have devised legislation aimed at
preventing unauthorised commercial use of an individual's
name or likeness, giving that person (or their estate)
an exclusive right to license the use of the identity
for commercial purposes. Celebrities, with some success,
have sought to use such legislation or court rulings about
'passing off' to provide protection from media intrusions.
Australian courts appear to be tentatively considering
such remedies, building on the NSW Supreme Court's 1960
assessment in Henderson v Radio Corp. - a 'passing
off' case - that appropriation of reputation was
injury in itself, no less, in our opinion, than the
appropriation of ... goods or money.
Performing artists and sports figures traditionally have
not had much copyright protection - and none at all if
the performance was not electronically recorded or otherwise
'fixed'. Over the past fifty years there have been two
At a national and international level performers - along
with publishers such as record companies and broadcasters
- have sought to strengthen 'neighbouring rights' (the
droits voisins) under copyright law. A major example
is the the Rome Convention of 1960 (not yet ratified by
the US), highlighted earlier
in this Guide.
Performers - and other celebrities - have concurrently
sought to control commercial exploitation of their persona
through existing trade practices law (eg restrictions
on false claims that a performer has endorsed a particular
product) or special 'rights of publicity' legislation
such as Tennessee's 1984 Personal Rights Protection
Act (aka the 'Elvis Law').
The first category can be traced to debate following the
landmark 1893 Warren & Brandeis paper on privacy,
with a 1905 ruling by the Georgia Supreme Court - in Pavesich
v New England Life Insurance over unauthorised use
by the insurer of Mr Pavesich's photo in its advertising
- generally regarded as the initial judicial judgment.
A New York state law, for example, enacted soon after
person whose name, portrait or picture is used within
this state for advertising purposes or for the purposes
of trade without the written consent first obtained
[from the person] ... may maintain an equitable action
... and may also sue and recover damages for any injuries
sustained by reason of such use
'rights' legislation seeks to prevent unauthorised commercial
use of an individual's name, likeness (including silhouette,
voice or signature) or other recognisable aspect of that
person's persona. The individual - and in some instances
the individual's heirs - gain an exclusive right to license
use of the persona for commercial purposes. In the US
the notion dates from a judge's broad statement in Haelen
Laboratories v Topps Chewing Gum, 1953 litigation
involving baseball cards.
In the US around 16 states have enacted such legislation,
most in the past decade after a series of court decisions
in favour of celebrities such as Jacqueline Onassis, the
Kennedy family, the heirs of Bela Lugosi and Martin Luther
King, Dustin Hoffman, Bette Midler and 'The King'.
They include California, Washington, Tennessee, Rhode
Island, Florida, Illinois, New York, Indiana, Virginia,
Massachusetts, Texas (Chapter 26 of the Property Code),
Kentucky, Nebraska, Oklahoma, Nevada, Utah and Wisconsin.
The Texas, California, Oklahoma and Nevada legislation
provides for registration of the publicity rights of deceased
individuals, enabling registrants to put on notice who
claims ownership of the rights and from whom consent must
Some of the statutes protect the dead, others do not.
In some states the restrictions on misappropriation of
privacy rights and publicity rights relate only to advertising.
Washington state law indicates that
individual or personality, as the case may be, has a
property right in the use of his or her name, voice,
signature, photograph, or likeness, and such right shall
be freely transferable, assignable, and licensable,
in whole or in part ... The property right does not
expire upon the death of the individual or personality,
as the case may be. The right exists whether or not
it was commercially exploited by the individual or the
personality during the individual's or the personality's
litigation involves celebrities, as it is usually difficult
for an ordinary person to demonstrate that use of his/her
likeness has commercial value and thus requires compensation
for commercial misappropriation of the persona. Celebrities
are also more likely to have the wherewithal for hiring
Proponents of the 'right' emphasise that it is consistent
with shibboleths such as the US First Amendment, does
not restrict legitimate media coverage or prevent parody.
In practice, there is considerable variation across the
In 2007 US judge Colleen McMahon ruled - in Shaw Family
Archives v CMG Worldwide - that Marilyn Monroe's right
of publicity within New York did not survive her death
in 1962, on the basis that "only property actually
owned by a testator at the time of her death can be devised
by will", no relevant jurisdiction "recognized
descendible postmortem publicity rights at the time of
Ms. Monroe's death" and accordingly "she could
not transfer any such rights through her will" (ie
"a post-mortem right cannot be created after death").
State legislation was promply introduced granting post-mortem
publicity rights, including retroactive protection for
anyone who died after 1938.
In the UK celebrities have increasingly sought to register
their names as trademarks as a personality rights mechanism.
Britney Spears for example has trademarked her name in
relation to music recordings and a wide range of for non-music
areas such as inflatable furniture.
In May 2004 the UK Trade Mark Registry issued a note indicating
a famous name is concerned ... the name may appear to
the ... consumer as an indication that the goods are
about the celebrity
and not that they are supplied or under the control of
the celebrity. That note was reflected in refusal during
2005 of an application by sporting figure Sir Alex Ferguson
to trademark his name for printed matter such as posters,
photographs and stickers. The Registry indicated that
due to his long-standing fame it was considered that people
would not think that he had actually endorsed a photo,
but understood that it merely depicted him.
The New York Court of Appeals ruled in 1982, in Arrington
v New York Times, that unauthorised publication of
photograph of a non-celebrity did not violate privacy
or publicity rights, commenting that publication is
price every person must be prepared to pay for a society
in which information and opinion flow freely.
flow might be slower down south, where the Tennessee law
provides protection in perpetuity and has been used successfully
by the Presley estate in a range of cases against nightclubs,
merchandisers and others.
The 1979 Lugosi v Universal Pictures decision by
the California Supreme Court held that the Lugosi name
and likeness could not pass to the actor’s heirs: the
rights of publicity died with Lugosi. California subsequently
enacted a Celebrities Rights Act in 1985, extending
to 70 years after death.
That provided a basis for the father of murder victim
Ron Goldman to to seek the publicity rights of celebrity
O J Simpson, who failed to pay a US$33.5 million judgment
in the Goldman family's 1997 wrongful death lawsuit. Fred
Goldman commented that Simpson "personally has never
paid a dime on the judgment to anyone. He has made it
very clear over the years that he has no intention of
doing so". Muhammad Ali sold 80% of rights to his
personality for US$50 million to licensing firm CKX in
Tennessee grants publicity rights in perpetuity, subject
to continuous commercial use of the persona. Indiana and
Oklahoma provide protection for 100 years after the individual's
death, Washington provides a 10 year post mortem right
for individuals and 75 for those rights with a 'commercial
value'. New York courts don't recognise the right at all
beyond death. A landmark 1982 decision by the Georgia
Supreme Court held that Martin Luther King Jr's right
of publicity descended to his heirs.
In the preceding year a New Jersey court held that an
Elvis impersonator violated the rights of Elvis Presley
Enterprises. In 1985 Woody Allen sought damages over advertising
featuring a lookalike. In 1988 the US Court of Appeals
awarded Bette Midler US$400,000 damages after an advertising
agency for Ford used a lookalike to perform "Do You Want
To Dance" to "sound as much as possible like the Bette
The 1992 Waits v Frito-Lay case involved action by singer
Tom Waits for "voice misappropriation and false endorsement"
regarding a radio commercial that imitated his "raspy
More recently, in the 1998 Michaels v. Internet Entertainment
pop personalities Pamela Anderson Lee and Bret Michaels
sought to restrict dissemination on the web of video of
their more intimate moments. In what is likely to be another
landmark, a 2001 decision by California's Supreme Court
in Comedy III Productions v Gary Saderup concerned
cartoons. A 2002 decision (PDF)
by the 9th Circuit court upheld a decision in favour of
Franklin Mint, finding that Princess Di failed to protect
exploitation of her likeness in the US during her lifetime
under the 1985 Celebrities Rights Act.
In 2006 a Munich court ruled that the Frankfurter
Allgemeine Sonntagszeitung should pay Boris Becker
€1.2m for unauthorised use of his image in promoting
the launch of its new edition in 2001.
Rights of publicity legislation has been used in the US
in dealing with commercial sites and with non-commercial
The newness of much of the legislation means that there
is uncertainty about First Amendment defenses and application
to domain names.
Free speech was for example used in a successful appeal
against an award of US$3 million to Dustin Hoffman over
a composite photo in LA Weekly Magazine. There
is also uncertainty about application of the legislation
outside the US.
Reclusive UK billionaire publishers the Barclay
brothers, in unsuccessful 1996 action
in France against the Observer and reporter John
Sweeney claimed that a caricature illustrating an article
breached their "absolute right to their own image".
A global overview is provided by International Privacy,
Publicity & Personality Laws (London: Butterworths
2001) edited by Michael Henry.
Beverley-Smith's Commercial Appropriation, noted
above, provides lucid coverage of Australia, New Zealand
and the United Kingdom. In Australia examinations of performers
rights - centred on royalty schemes - by the Copyright
Council and other bodies offer other perspectives. It
is complemented by Rosina Zapparoni's 2004 paper
'Propertising Identity: Understanding the United States
Right of Publicity and Its Implications - Some Lessons
for Australia' in 28 Melbourne University Law Review (2004) 690-731.
For an overview of online issues and developments see
Cristina Fernandez's brief 1998 paper
The Right of Publicity on the Internet, Deborah
Ezer's 2000 paper
Celebrity Names As Web Site Addresses: Extending the
Domain of Publicity Rights to the Internet, the 2002
Foreclosing on Fame: Exploring the Uncharted Boundaries
of the Right of Publicity (PDF)
by Melissa Jacoby & Diane Zimmerman and Igor Motsnyi's
Protection of Celebrities Names and Trade Marks under
the ICANN Uniform Domain Name Dispute Resolution Policy.
For introductions to the US regimes see Jennifer Carpenter's
Internet Publication: The Case for an Expanded Right
of Publicity for Non-Celebrities, the brief 1998 article
The Developing Right of Publicity by Robert Labate
& Jonathan Jennings (PDF),
the 1996 article
The Right Of Publicity: Going to the Dogs? by Russell
Frackman & Tammy Bloomfield and Douglas Baird's thoughtful
2001 paper Does Bogart Still Get Scale? Rights of Publicity
in the Digital Age (PDF).
Penny Manship's paper
Oh what a Tangled Web: The Entanglement of Fan Web
Sites and the Right of Publicity considers the Californian
There is an in-depth examination of US law in J Thomas
McCarthy's The Rights of Publicity & Privacy
(Eagan: West Group 2000).
For the UK the 2004 article
The Cult of Celebrity & Trade Marks: the next
instalment by Gillian Davies extends the treatment
Jane Gaines' Contested Culture: The Image, the Voice,
and the Law (Chapel Hill: Uni of North Carolina Press
1991) offers an historical perspective. Image Ethics:
The Moral Rights of Subjects in Photographs, Film &
Television (New York: Oxford Uni Press 1988) edited
by Larry Gross & John Stuart and New Dimensions
in Privacy Law: International & Comparative Perspectives
(Cambridge: Cambridge Uni Press 2006) edited by Andrew
Kenyon & Megan Richardson consider intersections between
privacy, free speech and intellectual property.
Playing Darts with a Rembrandt: Public & Private Rights
in Cultural Treasures (Ann Arbor: Uni of Michigan
Press 1999) by Joseph Sax is also of significance.
The Research Centre for Studies in Intellectual Property
& Technology Law at the University of Edinburgh has
established a 'Personality Database'
as part of its Privacy, Property and Personality research
stream. The Database features cases and legislative instruments
from Australia, France, Germany, the UK and US regarding
the protection of personality.
site itemises Elvis-related personality rights litigation.
Academic studies specific to Presley include David Wall's
Policing Elvis: Legal Action and the Shaping of Post-Mortem
Celebrity Culture as Contested Space (PDF)
and Steven Cordero's 1998 paper
Cocaine-Cola, the Velvet Elvis, and Anti-Barbie: Defending
the Trademark and Publicity Rights to Cultural Icons.
There is no authoritative compendium of the value of publicity
rights regarding defunct and living celebrities. One indication
is provided here, complemented
by discussion of corporate rights ownership here.
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