Why You Should Care About a Federal Right of Publicity

If you’re reading IPWatchdog, you probably have some familiarity with intellectual property rights, such as patents, copyrights and trademarks. However, one distinct type of intellectual property is often left out and misunderstood. It’s called the right of publicity.

While publicity rights are often confused with other types of intellectual property or privacy rights, or mistakenly associated only with famous individuals, they are incredibly important, far-reaching, and deserve much more attention.

This article will explore the right of publicity, including its history and importance in modern society.

The Right of Publicity Defined

Simply defined, the right of publicity is a type of intellectual property that grants any individual the right to control the commercial use of their name, image, likeness, or any feature that “unequivocally identifies” them. And, while most states have statutes in place to protect this right, others have been left to rely on a type of common law right of publicity, which can be more difficult to enforce.

Recognizing the Right of Publicity

Judge Jerome Frank is often cited as having coined the term “right of publicity” in the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. However, this was not the first time publicity rights were referenced in the pursuit of prohibiting others from profiting off an individual’s image, name, and likeness without consent. In fact, the concept of publicity rights predates what is considered to be the first explanation of privacy rights.

Publicity rights can be traced back as far as 1888, when Congress introduced a federal bill “[t]o prohibit the use of likenesses, portraits, or representations of females for advertising purposes without consent in writing.” As early as 1888, the United States recognized a need to protect its citizens from the commercial misappropriation of their name, image, and likeness. This federal bill did not pass, but 11 years later, in 1899, the first state publicity statute was enacted in California.

Today, most states recognize an individual’s right of publicity and have passed some sort of statute honoring that. However, federal protection of publicity rights has yet to be established.

The Origin of Publicity Rights

One of the first right of publicity cases involved a teenager named Abigail Roberson in 1902.

After paying a photographer to take her portrait in Rochester, New York, Roberson’s image was subsequently used, without permission, by the Franklin Mills Company in a “Flour of the Family” advertisement.

During this era, using a woman’s name, image, or likeness in an advertisement was generally perceived as immoral. The clear and unequivocal use of Abigail Roberson’s image in the “Flour of the Family” advertisement resulted in Roberson’s subsequent humiliation, public embarrassment, and nervous breakdown.

Roberson initiated a lawsuit, but she was denied any relief. Three dissenting judges supported the recognition of a common law right of publicity utilizing the reasoning from previous cases finding similar property rights. However, a four-judge majority refused to recognize a common law right of publicity, denying Roberson the right to control the commercial use of her publicity rights.

A few years later, in 1905, the Georgia Supreme Court reviewed a similar case involving a man named Paolo Pavesich, whose image was used in an insurance advertisement without his permission.

The Pavesich court came to the same conclusion as the dissenting judges in the Roberson case. This resulted in the official recognition of common law right publicity rights in Georgia and subsequently many other states.

Publicity Rights After Death

On December 6, 1971, in the small town of Kokomo, Indiana, Ryan White was born. Due to a genetic bleeding condition, he required regular and frequent blood transfusions. During one of these blood transfusions, White contracted AIDS when he was 13 years old.

Subsequently, White and his mother battled public ostracization, continued ignorance, and unjust discrimination, simply because he contracted AIDS from contaminated blood during a medical procedure. After successfully suing his school for denying his right to public education due to his AIDS diagnosis, White began raising awareness around AIDS.

For the remainder of his short life, White focused heavily on public awareness campaigns and fundraisers. After his death, White was recognized by former President George H.W. Bush through the Ryan White CARE Act.

A few years after White’s death, a company called Eclipse Enterprises released a set of AIDS Awareness trading cards. The cards were sold in packs of condoms. One of the cards, it was discovered, was printed with an image of the already-deceased Ryan White. Understandably, his mother was traumatized by the product and immediately spoke out against it, aiming to protect her son’s right of publicity.

This pushed Indiana to enact a right of publicity statute, granting all individuals, whether famous or not, to choose how and when their unequivocal features are commercially used.

Ryan White’s case demonstrates how important it is to enforce publicity rights, even after an individual’s death, to prevent misuse and overuse.

Untangling the Confusion Surrounding the Right of Publicity

One of the most difficult aspects surrounding publicity rights is the fact that they may look slightly different depending on the applicable jurisdiction. For the most part though, there are a handful of key issues that should be highlighted in the context of publicity rights.

Economic Value of Individuals’ Reputations

When it comes to using a person’s unequivocal identifying features, especially in the cases of advertising, the individual’s morals, beliefs, and values deserve some consideration. Not only can the overstepping of these rights have economic consequences, but it can also leave a lasting impact on their reputation. The reputation of individuals (especially entrepreneurs) and businesses has economic value, and while the primary economic rationale for publicity rights is control, economic value is part of what the right of publicity helps to protect.

The Right of Publicity for Everyday Individuals

Critics claim that only celebrities’ publicity rights carry true commercial value, but that’s definitely not the case in today’s world. Endorsement deals and sponsorships are no longer contracts reserved only for the rich or famous. In fact, due to the use of the internet and social media, social media influencers and “micro-influencers” are becoming more common than ever before. The case Fraley v. Facebook, in which a class action was brought against Facebook for profiting from its users’ publicity rights without permission or compensation, is an excellent example demonstrating how technological advancements have commercialized, and profited from, everyday individual’s publicity rights. This is why it is increasingly important to establish a federal right of publicity statute separate from patent, trademark, and copyright law.

Navigating State Decisions Concerning the Right of Publicity

The responsibility for recognition of publicity rights has been assigned to individual states. Understandably, this results in confusion among the courts, lawyers, and everyday individuals. In fact, most scholars, judges, and attorneys still consider publicity rights to be “complex and confusing,” primarily due to the absence of a federal statute.

And, because many states are relaxed in their stance on the importance of publicity rights, opportunists can often be found taking advantage by slightly modifying names, images, likenesses, voices, or other unequivocal features.

The Need for a Federal Right of Publicity Statute

As everyday people, business owners, and social media influencers continue to be unfairly exploited, more attention is being brought to the importance of a federal statute. By replacing the individual state statutes that currently stand, federal publicity rights could greatly improve the uncertainty and complexity that the legal system suffers from today. A federal statute would eliminate thieving opportunists and revenge pornography publishers by making the protection and enforcement of one’s unequivocal features much easier. Authorizing private civil claims at the federal level for right of publicity infringement would also lessen the burden of prosecutors and law enforcement agencies who routinely receive reports of individuals’ publicity rights being used in malicious ways.

Congress Proposes the Second Federal Right of Publicity Statute

Congress has recognized the need for a federal statute by proposing the second right of publicity bill, titled Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023 (“No Fakes Act”), which attempts to standardize rules around using a person’s right of publicity. However, this proposed bill is fatally flawed by limiting its protection to “digital replicas” and using other narrow language.

Intellectual property attorneys who practice right of publicity law can cite many situations where, under current law, an individual’s publicity rights can be violated without creating a digital replica, which would allow bad actors to exploit loopholes. Additionally, the proposed bill seems to leave unauthorized copying of authorized material containing an individual’s publicity rights off the table.

To resolve issues in the current draft of the No Fakes Act, a broad definition for publicity rights is required. Many scholars and practitioners have favored a version of the following definition: “The right of publicity is a type of intellectual property that grants any individual the right to control the commercial use of their name, image, likeness, or any other feature that ‘unequivocally identifies’ them.” Thus, using a person’s publicity rights for commercial purposes without a written license would create liability. Inserting this definition of publicity rights into the No Fakes Act and utilizing it throughout the text would solve many of the current problems with this area of law. It would create a uniform definition of publicity rights and preempt all state-based right of publicity statutes. Further, this definition would be easy to comprehend and apply in real life situations by providing three simple elements for infringement: (1) use of an individual’s publicity rights, (2) commercial use, and (3) absence of written permission.

It’s Time

Congress has provided a second foundation for a federal right of publicity. However, this foundation is not sound and must be reinforced with language that serves the need it is seeking to address. The need for a federal publicity statute was recognized in 1888. Evolving technology that exploits publicity rights in new ways adds to the urgent need for a federal publicity statute. Change is long overdue. After 132 years of waiting, it’s time for a federal publicity right statute that protects everyone.

Image Source: Deposit Photos
Author: stevanovicigor
Image ID: 175368072