Rights of Publicity/Right of Privacy

If a campaign will use pictures of individuals and names and/or likenesses of famous individuals, laws relating to rights of publicity and rights of privacy must be considered. These rights are generally state rights, not federal rights.

Laws establishing damages for invasion of privacy generally provide for liability when a person knowingly uses another person’s name or likeness in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling without the person’s prior consent.  There are generally four categories of conduct that fall under laws relating to rights of privacy:

1. Intrusion upon a person’s seclusion or solitude, or into his/her private affairs (conduct violating this category must be the type that is highly offensive to a reasonable person – these cases tend to be very fact specific);
2. Public disclosure of embarrassing private facts;
3. Publicity that places a person in a false light in the public's eye; and
4. Appropriation, of a person’s name or likeness for the advantage of the person using the name or likeness (this category is designed more to protect an individual’s right to be left alone rather than to compensate for an individual’s economic loss)

Typical defenses to a claim that a right of privacy has been violated include: consent of the individual; use of the name or likeness was in the public interest; or the information is in the public record.

Rights of Publicity

Rights of publicity laws, which are separate from rights of privacy laws, ordinarily require an individual to prove three things in order to prevail in a right of publicity action.

First, the individual claiming damages must prove that he/she is a celebrity with publicity rights worth protecting and not a private citizen with privacy rights. In other words, the individual needs to prove that they have created a business to exploit their personal attributes (for example, Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576 (1977) where the court found that the defendant's TV broadcast of plaintiff's human cannonball act unjustly enriched defendant at the expense of plaintiff's ability to earn a living).

Second, the individual must show that their name, voice, likeness, etc. was used in a way that is identifiable to the individual claiming a violation of rights.

Finally, the individual must show that the unauthorized use was a commercial use causing damage or irreparable injury. Generally, a picture taken in public does not give rise to a right of publicity/right of privacy claim, unless it is used for commercial purposes. An access marketing campaign may not qualify as commercial purposes, but the final determination will depend on the exact use of the picture, so it is always best to consult with a lawyer before using any given picture.

Sometimes a right of publicity action can be used by celebrities where copyright would fail - ex.: James Brown's vocal phrase "I feel good" would fail under a copyright infringement claim because it is a negligible use of copyrighted material, but under a right of publicity theory Brown may have prevailed because he could likely have shown that the public associated the vocal phrase with him.

Other cases of interest include:

• Midler v. Ford Motor Company, 849 F.2d 460 (9th Cir. 1988) (recognized a property interest in a singer's distinctive vocal style) Midler had been asked by Ford to do a commercial for the company - after she said no, Ford hired someone to imitate her voice and Ford lost the case;
• Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983) (court found "Here's Johnny" so closely associated with Johnny Carson that its use violated Michigan's right of publicity and so toilet distributor couldn't use Carson's name in conjunction with his toilets);
• Vanna White v. Samsung Electronics America, Inc., 971 F.2d. 1395 (9th Cir. 1992) (court found Samsung had appropriated White’s identity for commercial purposes);
• Stern vs. Delphi Internet Services Corporation, 626 N.Y.S.2d 694, (S.C. 1995)- Court found that Delphi’s use of Howard Stern’s name and picture was not a commercial misappropriation in violation of his right of publicity - Delphi used Stern’s name and picture to advertise its electronic bulletin board for debate on Stern’s candidacy for the office of Governor of New York - Court found that Delphi’s use fell under the “incidental use” exception and found Delphi to be a news disseminator analogous to a bookstore.

There are limitations on the right of publicity under the First Amendment of the U.S. Constitution. They include: newsworthiness, parody, commentary, and documentaries. In the end the courts must balance the right of the public to be informed against the rights of the performer/celebrity. Some examples of such balancing include:

• Zacchini v. Scripps-Howard Broadcasting Company, 433 U.S. 562 (1977) - (The Human Cannonball Case) - The court found that the station had every right to report on his act, but went too far in filming the entire act; and
• New Kids on the Block v. News America Publishing, 745 F. Supp. 1540 (C.D. Cal. 1990), aff'd, 971 F.2d 302 (9th Cir. 1992) - USA Today and Star Magazine published a 900 number for readers to call to vote on the most popular New Kid - the court found the newspapers use of the New Kids’ names and likenesses was related to news gathering and not solely commercial exploitation, so the newspapers won under the First Amendment balancing test.

Defenses to violations of the right of publicity include: consent of the individual whose name or likeness is being used, the First Amendment, parody, preemption by copyright law and/or incidental use.

Remedies for violations of rights of publicity include: injunctive relief (temporary and permanent) meaning that the court can prohibit use of the name or likeness and any materials incorporating such use) and damages (sometime including punitive damages).