The right of publicity is granted by the majority of states in the United States to those who commercially exploit their names, voices, personas, or likenesses, including sports figures, actors, and singers.
If, like most of us, you’re not a celebrity, you might wonder what this has to do with you. There are a couple of reasons everybody should have a basic understanding of the right of publicity:
Celebrities in Advertisements
You can use a celebrity to advertise your products and services, but only if the celebrity consents. If not, you might be liable for violating the celebrity’s right of publicity.
For instance, Dominick’s (then a supermarket chain) published an ad for its stores in an issue of Sports Illustrated published in connection with Michael Jordan’s induction into the Basketball Hall of Fame.
The ad for Dominick’s “Rancher’s Reserve” steak included a coupon as well as the Chicago Bull’s colors, Jordan’s name and jersey number, and a silhouette resembling the Jumpman logo used by Nike’s Jordan brand. Not surprisingly, Jordan sued. The jury awarded him $8.9 million.
Another grocery-store chain, Jewel-Osco (then owned by Albertson’s), published an ad in that same issue of Sports Illustrated, this one featuring a pair of #23 basketball sneakers and a paragraph of congratulations to Jordan along with the Jewel-Osco trademark, logo and slogan.
Jewel-Osco argued that Jordan didn’t have a claim because the ad didn’t refer to any specific product or service, and the lower court agreed, but on appeal, the court held that an ad promoting “brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service” is still an ad.
After this ruling, the parties settled both of the cases for an undisclosed sum, since the grocery-store chains were then both owned by Albertson’s (which had by then acquired Safeway, then-owner of the Dominick’s brand).
The right of publicity is governed by state law. The vast majority of those laws make it clear that the right of publicity continues after the celebrity’s death for a specified period of time.
Commercial Exploitation and Non-Celebrities
If you’re not a celebrity, others still can’t commercially exploit your name or image. In this situation, the right being infringed upon is called your right of privacy. The details are different, but this right is similar in that you’ll have a claim if your name, voice, or likeness is used commercially without your permission.
This means not only that you’re protected, but that you should not commercially exploit anyone else’s name, image or the like – even if they’re not famous. For example, if you use photos of your employees to advertise your business without getting their consent, they may have a claim against you for violation of their right of privacy. A noncelebrity’s right of privacy ends when the person dies.
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If you’re involved with intellectual property in any way, you should have a clear and detailed intellectual property policy covering protection of your own intellectual property as well as your uses of all third-party rights.
Please feel free to contact us if you need help drafting an intellectual property policy or obtaining rights from third parties, or if you believe your right to publicity or privacy has been violated.
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You may also be interested in obtaining a copy of The Law (in Plain English)® for Galleries, Third Edition, written by Leonard D. DuBoff and Christopher Perea, members of this law firm. The book is available through Skyhorse Publishing and Amazon and will soon be available from a number of other retailers, including Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by DesignEcologist on Unsplash
