The Right of Publicity is the right that individuals have to control the use of their name and likeness in a commercial setting. For example, you cannot put a picture of someone on your brand of pickles without their permission. The right of publicity is typically exploited by celebrities who earn large fees for endorsing products. However, even ordinary folks possess this right in most states. Since there is no federal statute concerning this right, the extent of the right can vary from state to state.
The Right of Publicity is similar to the appropriation form of invasion of privacy. The principal difference is that the right of publicity seeks to ensure that a person is compensated for the commercial value of his name or likeness, while the right of privacy seeks to remedy any hurt feelings or embarrassment that a person may suffer from such publicity.
Celebrities may have difficulty proving invasion of privacy, because they do not seek solitude and privacy. How can a celebrity claim that the unauthorized use of his likeness on a product embarrassed and humiliated him at the same time that he appears in numerous commercials? By thrusting themselves into the public eye, celebrities waive much of their right of privacy. On the other hand, celebrities have an especially valuable property right in their name and likeness, for which they are often paid handsomely to endorse commercial products.
Under either a publicity or privacy theory, subjects can recover for some unconsented uses of their names and likenesses. A problem arises, however, when one person’s publicity/privacy rights come in conflict with another person’s free speech rights under the First Amendment. Suppose a newspaper publisher wants to put a picture of Cher on the front page of its paper. Is her permission required?
While Cher’s name and likeness is being used on a “product,” the newspaper, this product is also “protected expression.” Products such as books, movies and plays are forms of expression protected by the First Amendment. The First Amendment allows journalists to write about others without their consent. Otherwise, subjects could prevent any critical reporting of their activities. When one person’s right of publicity conflicts with another person’s rights under the First Amendment, the rights under the First Amendment are often, but not always, paramount.
So in the case of the use of the name or likeness of Elvis Presley on a coffee cup 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 and likeness of Elvis. 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 and 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. These courts consider the right similar to the right of privacy and the right to protect one’s reputation (defamation). When a person dies, heirs don’t inherit these rights. Suppose you were a descendent of Abraham Lincoln. An unscrupulous writer publishes a defamatory biography claiming Abe was a child molester. You couldn’t sue for defamation or invasion of privacy. Perhaps this is why many scandalous biographies are not published until the subject dies.
In California, courts initially held that the right of publicity was personal and did not descend to one's heirs. In 1984, however, the California legislature enacted the Celebrity Rights Act which changed the law. This statute, presently found at Civil Code section 3344.1, provides that the right of publicity descends and lasts for 70 years after the death of the person. A similar statute, known as the Astaire Celebrity Protection Act (California Civil Code section 3344), prohibits the unauthorized use of the name, voice, signature, photograph or likeness on or in products, merchandise or goods for those who are living. Both statutes attempt to balance First Amendment rights against rights of publicity and privacy.
The California Secretary of State is responsible for registration of claims by successors-in-interest of deceased personalities. Section 3344.1 permits any person claiming to be successor-in-interest to the rights of a deceased personality register their claim. The registry of successor-in-interest claims contains the celebrity name, date of death, the name and address of the claimant and the interest claimed. The filing can be done online at: http://www.sos.ca.gov/business/sf/sf_siisearch.htm.
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.
Indiana appears to have the broadest Right of Publicity statute in the country, providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms. However, many of the cases concerning this right arise under New York or California law.