By Purple Fox Legal
February 2, 2022
If you’re like most people, you probably have some familiarity with intellectual property rights, such as copyrights and trademarks. However, one distinct type of intellectual property is often left out and misunderstood. It’s called the Right of Publicity.
While publicity rights are often confused with other types of intellectual property or privacy rights or mistakenly associated only with famous individuals, they are incredibly important, far-reaching, and deserve much more attention.
This article will explore the right of publicity, including its history and importance in modern society.
Simply defined, the right of publicity is a type of intellectual property that grants any individual the right to control the commercial use of their name, image, likeness, or any feature that “unequivocally identifies” them. And, while most states have statutes in place to protect this right, others have been left to rely on a type of common law right of publicity, which can be more difficult to enforce.
Judge Jerome Frank is often cited as having coined the term “right of publicity” in the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. However, this was not the first time publicity rights were referenced in the pursuit of prohibiting others from profiting off an individual’s image, name, and likeness without consent. In fact, the concept of publicity rights predates what is considered to be the first explanation of privacy rights.
Publicity rights can be traced back as far as 1888, when Congress introduced a federal bill “[t]o prohibit the use of likenesses, portraits, or representations of females for advertising purposes without consent in writing.” As early as 1888, the United States recognized a need to protect its citizens from the commercial misappropriation of their name, image, and likeness. This federal bill did not pass, but eleven years later in 1899, the first state publicity statute was enacted in California.
Today, most states recognize an individual’s right of publicity and have passed some sort of statute to grant individuals the right to protect their unequivocally identifiable features from commercial exploitation. However, federal protection of publicity rights has yet to be established.
One of the first right of publicity cases involved a teenager named Abigail Roberson in 1902.
After paying a photographer to take her portrait in Rochester, New York, Roberson’s image was subsequently used, without permission, by the Franklin Mills Company in a “Flour of the Family” advertisement.
During this era, using a woman’s name, image, or likeness in an advertisement was generally perceived as immoral. The clear and unequivocal use of Abigail Roberson’s image in “Flour of the Family” advertisement resulted in Roberson’s subsequent humiliation, public embarrassment, and nervous breakdown.
Roberson initiated a lawsuit, but she was denied any relief. Three dissenting judges supported the recognition of a common law right of publicity. However, a four-judge majority refused to recognize a common law right of publicity, denying Roberson the right to control the commercial use of her publicity rights.
A few years later in 1905, the Georgia Supreme Court reviewed a similar case involving a man named Paolo Pavesich, whose image was used in an insurance advertisement without his permission.
The Pavesich court came to the same conclusion as the dissenting judges in the Roberson case. This resulted in the official recognition of common law right publicity rights in Georgia and subsequently many other states.
Another important right of publicity case involved a Hoosier named Ryan White.
On December 6, 1971, in the small town of Kokomo, Indiana, Ryan White was born. Due to a genetic bleeding condition, he required regular and frequent blood transfusions. During one of these blood transfusions, White contracted AIDS when he was 13-years-old.
Subsequently, White and his mother battled public ostracization, continued ignorance, and unjust discrimination, simply because he contracted AIDS from contaminated blood during a medical procedure. After successfully suing his school for denying his right to public education due to his AIDS diagnosis, White began raising awareness around AIDS around the globe.
For the remainder of his short life, White focused heavily on public awareness campaigns and fundraisers. After his death, White was recognized by former President George H.W. Bush through the Ryan White CARE Act.
A few years after White’s death, a company called Eclipse Enterprises released a set of AIDS Awareness trading cards. The cards were sold in packs of condoms. One of the cards, it was discovered, was printed with an image of the already-deceased Ryan White, implying a condom could have saved his life. Understandably, his mother was traumatized by the product and immediately spoke out against it, aiming to protect her son’s right of publicity.
This pushed the State of Indiana to enact a right of publicity statute, granting all individuals, whether famous or not, to choose how and when their unequivocal features are commercially used.
Ryan White’s case demonstrates how important it is to enforce publicity rights, even after an individual’s death, to prevent misuse and overuse.
One of the most difficult aspects surrounding publicity rights is the fact that they may look and work differently depending on the applicable jurisdiction. For the most part, though, there are some key issues that deserve recognition in the context of publicity rights, no matter what.
When it comes to using a person’s image or identifying features, especially in the cases of advertising, the individual’s morals, beliefs, and values deserve some consideration. Not only can the overstepping of these rights have economic consequences, but it can also leave a lasting impact on their reputation. Reputation has economic value, and that is part of what the right of publicity helps to protect.
Critics try to claim that only a celebrity’s image carries true commercial value, but that’s definitely not the case in today’s world. Endorsement deals and sponsorships are no longer contracts reserved only for the rich or famous. In fact, due to the use of the internet and social media, everyday market influencers and “micro-influencers” are becoming more common than ever before. The case Farley v. Facebook, in which a class action was brought against Facebook for profiting from its users’ publicity rights without permission or compensation, is an excellent example demonstrating how every individual’s publicity rights have economic value. This is why it is increasingly important to establish a federal right of publicity.
For now, the responsibility for the recognition of publicity rights has been assigned to individual states. Understandably, this results in some confusion among the courts, lawyers, and everyday individuals. In fact, most scholars, judges, and attorneys still consider publicity rights to be “complex and confusing,” primarily due to the absence of a federal statute.
And, because many states are relaxed in their stance on the importance of publicity rights, opportunists can often be found taking advantage by slightly modifying names, images, likenesses, voices, or other unequivocal features.
As everyday people and social media influencers continue being unfairly exploited, despite their existence of publicity rights, more attention is brought to the importance of a federal statute.
By replacing the individual state statutes that currently stand, federal publicity rights could greatly improve the uncertainty and complexity that the legal system suffers through today. A federal statute would eliminate thieving opportunists and publishers of revenge pornography by making the protection and enforcement of one’s unequivocal features much easier.
Until then though, consulting an attorney who is experienced in publicity rights and state statutes is the best way to defend your publicity rights, before and after death.