What to know about rights of publicity

Ablene Cooper recently sued author Kathryn Stockett over the character of “Aibileen” in the novel and movie The Help because Cooper claimed it was based on her name and likeness without her permission. The lawsuit was thrown out on statute of limitations grounds, but it makes us think about what other people can do with our own images, likenesses, and stories, commonly known in the legal world as one's “right of publicity.”

Celebrities confront this issue all the time. Their public images are their stock in trade and they spend endless hours honing and protecting it. When someone not authorized to use that image goes ahead and does it anyway, they enter the legal miasma called “right of publicity.”

So what is this right of publicity all about? Can just anybody use your name and likeness without your permission? Does it depend on who “you” are, or how your image is being used? Read on.

Defining the right of publicity

Under many state statutes, the right of publicity prevents the use of another's name, image, likeness, or other recognizable aspects of his or her persona for commercial gain without permission. Plainly put, this body of law grants an individual the right to control commercial use of his or her identity, although the specifics do vary by state. Note as well that not all states have a specific right of publicity but may include it under the broad umbrella of privacy. Invasions of privacy, according to the Second Restatement of Torts are intrusion, appropriation of name or likeness, unreasonable publicity, and false light, with the right of publicity most closely aligned with appropriation of name or likeness. As of now, there is no federal right of publicity per se, but that is far from the end of the story: right of publicity cases very often end up in federal court.

The right of publicity and intellectual property

Right of publicity might sound like they have something to do with other areas of intellectual property—like copyright and trademark. If you thought this when you started reading, you'd be right. Between copyright and trademark, trademark is a closer cousin: at the core of both is the prevention of unfair competition through the suggestion of a connection between two entities where such a connection does not actually exist—like a fake celebrity endorsement, for example. In both areas of the law, the idea is to stop unfair gain for one through the use of something that people associate with the business of another. But what business? Can someone's name or face be a business? Think of how much money celebs get for endorsing products, and then ask yourself that question again. There are right of publicity cases that rely more on a copyright-type analysis, though.

Because of such potential overlap and uncertainty, it's always best to research how your jurisdiction deals with this stuff.

Right of publicity cases throughout the years

Far from a rarity in American jurisprudence, there have been many right of publicity lawsuits over the years, most which have involved celebrities. Some of the most famous examples arose out of companies using celebrity impersonators to sell products without the impersonated celebrities' permission. Bette Midler and Tom Waits both secured large damage awards (from Ford Motor Company and Frito-Lay, respectively) when they brought right of publicity claims for vocal impersonators of the stars hawking Mercury Sables and Salsa Rio Doritos.

According to Professor Jonathan Farber at RightOfPublicity.com, the Supreme Court has only dealt with one right of publicity case, and it involved Hugo Zacchini, the “human cannonball” in 1977. The Court found that a local television station violated Zacchini's right of publicity when it aired his entire 15-second performance on the news, adversely affecting the public's desire to pay for and attend the show in person. Query whether there was a copyright claim here as well—what do you think?

Bringing us into the present century, an Iraq war veteran has sued the makers of The Hurt Locker, alleging that they used his life story without permission as the basis for the movie's plot. The veteran in question is named Jeffrey Sarver. He lost his case, badly. Also recently, Maroon 5 singer Adam Levine brought legal action against video game publisher Activision for using avatars of his band in ways that Levine alleges were not authorized. Levine's case has not exploded like Sarver's, and is still pending.

Right of publicity isn't just for the famous—or the living

One doesn't have to be famous for a right of publicity issue to arise. Even more surprising, perhaps, is that in 12 states, one doesn't even have be alive. In those jurisdictions, the right of publicity may survive the death of the person with the likeness in question, although for how long depends on the text of the governing statute. Thus, if anyone has been using your or a loved one's name, image, or likeness without permission and for commercial gain, it just might be time to start learning more about the right to publicity and how to protect it.

For more information on right of publicity, visit Professor Jonathan Faber's RightOfPublicity.com.