Right of Publicity

From Media & Entertainment Law Wypadkis

Commercial Appropriation (Right of Publicity)- IS using a person’s name or likeness to gain a benefit without that person’s consent. Protects the dignity of an individual by prohibiting the unauthorized use of a person’s name or likeness in a manner that would cause the person to be offended or embarrassed. It is a commercial tort by protecting the commercial value of an individual in the commercial use of that person’s identity. Every publication of someone's name or likeness does not give rise to an appropriation action. There must be more than a name or personality similar White. Elements- 1) Use of the P’s name or likeness by the D; 2) to benefit the D (commercial or other type); 3) in a way that P suffered damages (reputation, but can’t be a loser); 4) caused by the D. Miscellaneous- There is a split of authority as to whether a non-celebrity has a common law right of publicity. The right of publicity is assignable through licenses. Remedy- Injunctive relief is available in a right of publicity action. Compensatory damages are also available. The market value of the use is a recognized measure of damages. Several statutes have statutory damages because a value may be hard to compute. Postmortem- This right exists postmortem in a majority of states that have statutory right of publicity. This is because it is still commercial property similar to copyright. HMP- N/A; T/F- N/A; Highly Offensive-N; Intent- N; Defenses- 1) Consent- Some states demand that this be in writing. 2) De Minimus Defense- A use of a person’s identity may be so fleeting or de minimis that no violation of her right of publicity will be found. 3) Public Interest- Matters which rests on the right of the public to know and the freedom of the press is not ordinarily actionable. Dora. Novels- It is generally understood that novels are written out of the background and experiences of the novelist. Polydoros. Film- is protected by the constitutional guarantee of free speech because it is a significant medium for the communication of ideas. Polydoros. 4) 1st Am- Commercial speech is not protected & visa versa. If the publication has commercial undertones may still be protected if it concerns a legitimate matter of public concern. It just depends on what speech predominates (matter of law.) Motive doesn’t matter. Right of free speech & press are given “breathing space” so as to not limit speech for fear of liability. Neither the right to privacy nor the right of freedom of press is absolute.

Life Story Contracts- No such thing as life story rights- when you buy them you are just getting a series of waivers and releases to prevent suits for defamation right of publicity. Buyer’s Rights- There will be a provision that gives the buyer the right to embellish, fictionalize, dramatize and adapt the life story in any way he chooses. There will also be a warranty from the seller to never sue for an invasion of his rights of publicity and privacy or defamation. Normally the producer will want carte blanche, but alternatives are there such as hiring the man as a technical consultant or obtain a release a head of time for certain incidents. Seller’s Rights- The person could also have the final say as to whether it is a true story or dramatized account. You can sue someone on a common law right to protect identity for impersonations.

Land- Location agreements should be sought from landowners or land possessors when shooting on private property, and permits should be obtained from the appropriate government entity when shooting on public property. Exception- A non-identifiable building would be an ordinary non-descript one that cannot be distinguished form many others. Although architectural works are copyrightable, the copyright does not prevent filmmakers from filming a building that is ordinarily visible from a public place.

• This is a property right not a tort
• It is the right to charge for (or bar entirely) the commercial exploitation of name, likeness, voice or "personality."
• Elements
  • Use of Plaintiff's name or image (some times voice)
    • Can the Plaintiff be recognized by the general public
  • Without consent of the Plaintiff
  • With financial benefit to the defendant or harm to the plaintiff
    • This element can also be proved by showing a financial loss to the Plaintiff, i.e. the use of plaintiff's name or image in some way dilutes his ability to sell it to other.
• Defenses
  • Incidental use
    • The use is so small that neither adds to the value of the medium nor damages the interest of the plaintiff.
  • Newsworthiness
• Note - Normally violated when one's name or likeness is placed on a product such as a mug. If the name and likeness are used in a book or a movie there is freedom of speech issue that protects the authors from a suit if there is a public interest at hand in the work or it the work is a fiction.

C: Dora v. Frontline- P is a surfing legend whose likeness and voice were captures in a documentary about surfing. He never gave consent. Appellant's evidence does nothing to establish that any private facts were disclosed. Publication of the interview is constitutionally protected in the absence of a showing that the publishers knew that their statements were false or published them in reckless disregard of the truth. The court presumes that the term "public affairs" was intended to mean something less important than news. C: Polydoros v. 20th Century Fox- Noncelebrity sued the makers of The Sandlot. In favor of Ds, AFFIRMED. A man in the movie was similar to one of the director’s friends growing up. P concedes that it is a work of fiction, that a lot of the movie is not based on reality, and that he hasn’t been hurt financially. C: White v. Samsung- The court found that the fact that the robot was wearing a long gown, blond wig, and jewelry; was turning a block letter on a game board; and was standing on what appeared to be the set of Wheel of Fortune constituted sufficient facts to establish a common law right of publicity claim. Lastly, the court found a jury could have reasonably conclude that beneath the surface humor of the series of ads lay an intent to persuade consumers that plaintiff was endorsing defendant electronics company's products.