RIGHT OF PUBLICITY - WHAT PRODUCERS NEED TO KNOW

The Right of Publicity is the right that individuals have to control the use of their name & likeness in a commercial setting. For example, you cannot put a photo of someone on a product without their permission. Celebrities, of course, make a lot of money exploiting their publicity rights by endorsing products.

However, the right of publicity is not limited to celebrities as the courts have recognized that it is the inherent right of every person to be able control the commercial use of their identity & image. The right of publicity seeks to ensure that a person is compensated for the commercial value of their name or likeness.

However, the extent & nature of that right varies across the country because there are no federal laws regarding the right of publicity & 35 states have laws regarding individuals’ right of publicity. For example, here in California the Celebrity Rights Act, which was passed in 1985, allows a celebrity’s personality rights to survive their death & pass to their heirs.

Regardless of which state laws apply, the protections provided by these laws typically included protection of a person’s name, image, voice, signature, & likeness.

The right of publicity can often clash with free speech rights under the First Amendment. Films are a form of expression protected by the First Amendment.

Understanding the interplay between the right of publicity & the First Amendment is important for producers.

Documentary filmmakers, for example, would likely be able to use the name, image, voice, & likeness of a celebrity, if done so appropriately, in a documentary film whereas producers of a narrative film using actors could not use the image, voice & likeness of the subject without permission.

So in the case of the use of the name or likeness of Marilyn Monroe on a coffee mug or T-shirt, there is no expression deserving protection. The seller of these products is not making a statement or expressing an opinion. The seller is simply trying to make a buck by exploiting the name & likeness.

Since there are no First Amendment rights needing protection in this instance, the right of publicity may stop the unauthorized use of a subject’s name or likeness. Thus, the law draws a distinction between products that contain protected expression & those that do not. Generally speaking, it is permitted to use, without consent, a person’s name or likeness in a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works.

Courts have struggled with the issue of whether the right of publicity descends to a person’s heirs. In other words, when a celebrity dies, does his estate inherit his right of publicity? Can the estate continue to control the use of the celebrity’s name or likeness or can anyone use it without permission?

Some courts have held that the right of publicity is a personal right that does not descend.

In California, courts initially held that the right of publicity was personal & did not descend to one's heirs. In 1984, however, the California legislature enacted the Celebrity Rights Act which changed the law. This statute provides that the right of publicity descends & lasts for 70 years after the death of the person. A similar statute, known as the Astaire Celebrity Protection Act prohibits the unauthorized use of the name, voice, signature, photograph, or likeness on or in products or goods.

In other states, the right to publicity may descend. The rights of the heirs, however, may be outweighed by other people’s First Amendment rights. Because the Right of Publicity is a state-based right, as opposed to Federal right, its application can vary depending on which state's law applies. In many jurisdictions even if there is not a specific Right of Publicity statute, this right may be recognized by the courts.