The Right of Publicity―A Misunderstood, Misshapen, Bloated Monster

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From The Volokh Conspiracy:

The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant’s advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.

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The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people’s images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts.

The right has led to liability for comic book authors who name characters after their favorite hockey players, and a payout by the nightly news for showing a fifteen-second clip of a performer at a local fair. The right has blocked television and movie producers from making or licensing derivative works based on their copyrighted works, such as action figures, movie posters, and robots that remind people of fictional characters. The right can stop businesses from accurately reporting that celebrities are wearing their clothes or handbags or jewelry, or eating in their restaurants.

Perhaps worst of all, under many state laws, the right of publicity is treated as a fully transferable property right, meaning that your own name, likeness, and voice could be sold, given away, or taken by someone else―forever.

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The NCAA has claimed that student-athletes assigned (gave) their rights over their names and likenesses to the NCAA in perpetuity. Reality television producers have asked contestants to sign over their rights to their names and likenesses and life stories to the producers or production companies as a condition for participation on the shows.

Both Facebook and Twitter have claimed to be able to use your name and picture to endorse and advertise products, and even on products, like trading cards.

Link to the rest at The Volokh Conspiracy

Here’s a link to The Right of Publicity: Privacy Reimagined for a Public World by law professor Jennifer Rothman