The Right To Publicity — It's Easy To Get Wrong
All states in the United States recognize the right of publicity as a common-law right. Many states, such as California and New York, have statutes dealing with the right of publicity. These statutes generally supplement common-law rights, providing even greater safeguards. The right of publicity protects people from the unauthorized exploitation of their name, likeness or voice. While most often thought of in connection with celebrities and other persons in the public's eye, the right of publicity extends to everyone. As such, this right can have significant impact on people involved in news, publishing, advertising, music and in making motion pictures, television programs and documentaries. It is a right that should be given careful consideration.
The right applies to any use, not just commercial uses; It applies even where the use is of the person’s nickname, or a "look-alike" or a voice imitation. It can even apply where the use only triggers the idea of a person. For example, Johnny Carson won a lawsuit against a company selling "Here’s Johnny" portable toilets. Some legal scholars assert that there is a potential case for liability anytime anybody uses anyone's name, likeness or voice — or imitation thereof — for any reason. In today's litigious society, it is ill advised to advance a contrary argument.
However, there are times where you can use a person’s name, likeness and voice. These include situations that fall under or are defensible by the following doctrines: Free Speech under the First Amendment to the Constitution; Implied (or Express) Consent; Equitable Fair Use and Use of Public Facts. These often complex doctrines must be analyzed and applied to the specific facts of each case to determine if they act as a defense to an infringement of the right.
With the cost of litigation and the danger of being held liable for sizable damages for violation of this right, substantial harm can result from merely being named as a defendant in a right to publicity lawsuit. Due to the highly fact-based nature of these cases, rarely do they resolve by summary judgment. This is an area where it would be a good idea to consult with a lawyer early. Of course, Kaye & Mills stands ready to assist you on such issues.
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NOTE: These articles and excerpts are provided on the condition that they cannot be referred to or quoted in any legal proceeding. The reader is strongly urged to consult with a lawyer for legal advice on these matters. Any reliance on the information or excerpts by someone who has not entered into a written retainer agreement with the lawyer providing this information is at the reader's or recipient's own risk.
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