The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).
Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United Statesjurisprudence has substantially extended this right.
A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).
In contrast with common law jurisdictions, most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate an ordinary citizen's privacy to speak about their medical records, one is generally allowed to report on more intimate details in the lives of celebrities and politicians.
Unlike most common law jurisdictions the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmirched by such publication.
Mixed systems using elements of common law
Civil, customary and/or religious law (see map above)
Personality rights have developed out of common law concepts of property, trespass and intentional tort. Thus personality rights are, generally speaking, judge-made law, though there are jurisdictions where some aspects of personality rights are statutory. In some jurisdictions, publicity rights and privacy rights are not clearly distinguished, and the term publicity right is generally used. In a publicity rights case the issue to decide is whether a significant section of the public would be misled into believing (incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products. This is done by way of the tort of passing off.
The meaning of the law is best illustrated by principal cases on the subject.
The Henderson case was a decision of the High Court of New South Wales (both the first instance and appellate jurisdiction). The plaintiffs were ballroom dancers and they sued the defendant in passing off alleging it wrongfully published their photograph on the cover of a gramophone record entitled "Strictly for Dancing: Vol. 1". An injunction was granted on the ground that the use suggested the plaintiffs recommended or approved of the defendant's goods, or had some connection with the goods.
An appropriation of personality can be achieved through the use of a person’s name, likeness, or voice (but British Columbia has a more restrictive definition).
The plaintiff must be identified or identifiable by the use made of his persona.
An action for the appropriation of personality can only succeed where the defendant intended to commit the wrong (but British Columbia has no "intention" requirement).
The defendant’s use of the plaintiff’s persona must have resulted in a gain or advantage for the defendant (but British Columbia has a more restrictive definition, relating only to commercial gain).
An appropriation of personality is actionable without proof of damages.
The right of action for appropriation of personality is extinguished upon the death of the person whose privacy was violated.
The following constitute statutory defences in all four provinces: (i) that the plaintiff consented to the use of his persona; (ii) that the use of the plaintiff’s persona was incidental to the exercise of a lawful right of defence of person or property; (iii) that the use was authorized or required under a provincial law or by a court, or any process of a court; and (iv) that the act was that of a peace officer acting in the course of his or her duties. The Manitoba Act provides additional defences.
Canadian common law recognizes a limited right to personality. It was first acknowledged in the 1971 Ontario decision of Krouse v. Chrysler Canada Ltd., where the Court held that where a person has marketable value in their likeness and it has been used in a manner that suggests an endorsement of a product then there is grounds for an action in appropriation of personality. This right was later expanded upon in Athans v. Canadian Adventure Camps (1977) where the Court held that the personality right included both image and name.
The general tort of appropriation of personality is still in development, but it is currently being argued that it will be recognized in all common law provinces, with certain characteristics:
Athans confirms that there is "a proprietary right in the exclusive marketing for gain of his personality, image and name..."
There is always a requirement that the plaintiff be identifiable.
An action for appropriation of personality will have to be intentional for a plaintiff to recover at common law.
There is a requirement that the defendant must have acted for the purpose of commercial gain, but Gould suggests that this may be restricted to "endorsement-type situations".
It is a matter of uncertainty whether the common law tort of appropriation of personality is actionable per se or whether damages must be shown.
Privacy rights are extinguished upon death, but personality rights are inheritable.
A defendant will not be liable for an appropriation of personality at common law where: (i) he has consented to the use of his persona; (ii) the use made of his personality rights was merely incidental to another purpose; or (iii) the publication constituted a matter of public interest.
There are certain provisions on rights in the new Civil Code of Quebec that enshrine the right to privacy as an attribute of personality:
3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.
36. The following acts, in particular, may be considered as invasions of the privacy of a person:
(1) entering or taking anything in his dwelling;
(2) intentionally intercepting or using his private communications;
(3) appropriating or using his image or voice while he is in private premises;
(4) keeping his private life under observation by any means;
(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;
(6) using his correspondence, manuscripts or other personal documents.
Therefore, the following general characteristics may be drawn:
An appropriation of personality can be realized through the use of a person’s name, likeness, or voice.
The plaintiff must be recognizable in order an appropriation of personality to be actionable.
There is no need for the courts to look for an element of intent.
The plaintiff is required to show that she suffered damage through the appropriation of her personality rights.
Quebec law may allow an action to be taken by the estate of a deceased person, provided that it can be proved that there is a patrimonial aspect at stake.
A defendant will not be liable for an appropriation of personality under Quebec law where: (i) the plaintiff expressly or impliedly consented to the appropriation of his personality; (ii) the use of the individual’s persona is incidental to another purpose; (iii) the appropriation of personality is authorized by law; or (iv) the publication is a matter of public interest.
In Denmark, the Danish Penal Code chapters 26 and 27, provides certain personality rights. The governmental Danish Data Protection Agency, has made a declaration regarding publication on the Internet of pictures taken of persons in a public area:
The predominant point of reference, is that any publication of a portrait photograph requires consent [of the person depicted]. The reasoning for this, is that such a publication might provide the depicted person with discomfort, possibly with other information such as name, of the publication for all with access to the internet, and the considerations of this discomfort is judged as more important than a possible interest in publication.
A portrait photograph is defined as a photograph, with the purpose of depicting one or more specific person(s). The personality rights however may be contracted for persons who are generally accepted as public persons.
In France personality rights are protected under article 9 of the French civil code. While publicly known facts and images of public figures are not generally protected, use of someone's image or personal history has been held actionable under French law. The most famous case in recent history is perhaps the publication of the book on François Mitterrand called Le Grand Secret (fr) in which Mitterrand's doctor published a book that not only revealed private facts about Mr. Mitterrand's life, but also revealed medical confidences protected by doctor–patient privilege.
In Germany personality rights are protected under the German civil code. The concepts of an "absolute person of contemporary history" which allow the depiction of individuals who are part history but still gives them some protection of their rights of privacy outside the public sphere.
A succinct statement of the German law can be found in the following judicial statement from the Marlene Dietrich case BGH 1 ZR 49/97 (1 December 1999), Translated by Raymond Youngs (Copyright: Professor Basil Markesinis, ‘Always on the Same Path’ and ‘Essays on Foreign Law and Comparative Methodology’, Hart Publishing 2001, reproduced here as fair use of a legal decision):
Sec. II; para. 1. The general right of personality has been recognised in the case law of the Bundesgerichtshof since 1954 as a basic right constitutionally guaranteed by Arts 1 and 2 of the Basic Law and at the same time as an "other right" protected in civil law under § 823 (1) of the BGB (constant case law since BGHZ 13, 334, 338 - readers' letters). It guarantees as against all the world the protection of human dignity and the right to free development of the personality. Special forms of manifestation of the general right of personality are the right to one's own picture (§§ 22 ff. of the KUG) and the right to one's name (§ 12 of the BGB). They guarantee protection of the personality for the sphere regulated by them (reference omitted).
The relevant Greek laws include 57 AK and 2472/1997. As regarding photography:
Taking a picture of a person in a public space: Requires consent. Taking a photo or video of someone or drawing them in a painting constitutes an illegal act by itself according to Article 57 of the Greek Civil Code (57 ΑΚ, 57 Αστικός Κώδικας) even without any publication of the resulting photo, video or drawing. The law assumes that consent has been provided silently if the depicted person has been paid for the photography session. The law also provides some exceptions for persons of contemporary history. Furthermore, the law 2472/1997 also applies in many circumstances, even in photographing political rallies in public places or in photographing the police; Greece also requires photographers to obtain a government permit before photographing people participating in political protests in public places.
Publishing pictures of a person in a public space: Requires consent. The publication of photographs of identifiable police officers beating civilians in public places may be against the law 2472/1997 and as such these images should be turned to the authorities for review.
Commercial use of a published picture of a person in a public space: Requires consent.
The relevant Guernsey law was enacted on 3 December 2012 under the name of Image Rights Bailiwick of Guernsey Ordinance 2012 and allows for the registration of a personality right, together with images associated with that personality. Images are widely defined and can be any number of personal attributes, such as likeness, mannerisms, gestures, voice, nickname etc.
Personalities able to register fall into 5 categories, namely sole, joint, group, legal and fictional character. In addition, humans can be registered up to 100 years after the date of death, making the law very favourable for estate managers and trustees.
In the People's Republic of China, rights of personality are established by statute. According to article 99 and 100 of the General Principle of Civil Law of the People's Republic of China, the right of name and the right of image are protected. It is prohibited to use another's image for commercial use without that person's consent. In the new Tort Liabilities Law, the right of privacy is mentioned for the first time in the legislation.
According to the agency (Spanish) Data Protection for the collection and dissemination on Internet of images of a person without their consent may be a serious breach of the Data Protection Act which would be punishable by a minimum fine of 60,000 euros. According to El Mundo Data Protection Agency decided to investigate ex officio by the mere distribution of the image of a person on the Internet without their consent.
In the United States, the right of publicity is a state law-based right, as opposed to federal, and recognition of the right can vary from state to state. The rationale underlying the right of publicity in the United States is rooted in both privacy and economic exploitation. The rights are based in tort law, and the four causes of action are: 1) Intrusion upon physical solitude; 2) public disclosure of private facts; 3) depiction in a false light; and 4) appropriation of name and likeness. Typically, but by no means exclusively, the right of publicity is manifest in advertising or merchandise. The right of publicity is a state-based right, as opposed to federal. In most other jurisdictions without a specific right of publicity statute, the right of publicity may still be recognized via common law. The right of publicity has evolved rapidly, with a history of reported cases in the United States and worldwide.
By the broadest definition, the right of publicity is the right of every individual to control any commercial use of his or her name, image, likeness, or some other identifying aspect of identity, limited (under U.S. law) by the First Amendment. The right of publicity can be referred to as publicity rights or even personality rights. The term "right of publicity" was coined by Judge Jerome Frank in 1953.
The extent of recognition of this right in the U.S. is largely driven by statute or case law. Because the right of publicity is primarily governed by state (as opposed to federal) law, the degree of recognition of the right of publicity varies significantly from one state to the next. The Lanham Act governs federal protection of personality rights, and the doctrine has much in common with the laws defining federal protection of trademarks. In fact, an individual’s identity could be considered their personal “mark”, the misappropriation of which is sufficient to constitute infringement. In addition, both trademark and publicity rights appear to be designed somewhat to combat infringement for the sake of consumers, granting a cause of action for false descriptions, false representations, and false endorsement claims. Just as there is a cause of action for implying a certain brand sponsors a product when it really does not, there is a cause an action if a celebrity’s identity is used to imply endorsement for a product they are not, in actuality, affiliated with. Courts will typically consider eight factors when weighing a false endorsement claim, in order to determine the likelihood of consumer confusion:
the strength of his mark.
the degree of similarity between the two marks.
the proximity of the products/services.
the likelihood that the prior owner will bridge the gap.
the defendant's good faith in adopting its own mark.
the quality of the defendant's product.
the sophistication of the buyers.
These eight factors have their origins in the case Polaroid Corp. v. Polarad Elect. Corp., but are similarly used by courts to analyze false endorsement claims by celebrities.
Indiana is believed to have the most far-reaching right of publicity statutes in the world, providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms. There are other notable characteristics of the Indiana law, though most of the major movement in right of publicity emanates from New York and California, with a significant body of case law which suggest two potentially contradictory positions with respect to recognition of the right of publicity.
Some states recognize the right through statute and some others through common law. California has both statutory and common-law strains of authority protecting slightly different forms of the right. The right of publicity is a property right, rather than a tort, and so the right may be transferable to the person's heirs after their death. The Celebrities Rights Act was passed in California in 1985 and it extended the personality rights for a celebrity to 70 years after their death. Previously, the 1979 Lugosi v. Universal Pictures decision by the California Supreme Court held that Bela Lugosi's personality rights could not pass to his heirs.
In September 2002, Tom Cruise and Nicole Kidman sued luxury goods company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.
A recent example is John Dillinger's rights of publicity, as seen in Phillips v. Scalf, a 2003 Indiana Court of Appeals case. The operators of Dillinger’s restaurant are alleged to have violated the right of publicity of Jeffrey G. Scalf, the grandnephew of the 1930s gangster and bank robber John Dillinger, in using without authorization Dillinger’s name, image, and likeness in connection with the restaurant. In a later case, a U.S. district court ruled in 2011 that Indiana's publicity rights statute did not protect people who died before the law's enactment in 1994.
In March 2003, eight members of the cast of The Sopranos alleged that electronics retailer Best Buy used their images in newspaper ads without permission.
In 2008, a federal judge in California ruled that Marilyn Monroe's rights of publicity were not protectable in California. The court reasoned that since Monroe was domiciled in New York at the time of her death, and New York does not protect a celebrity's deceased rights of publicity, her rights of publicity ended upon her death.
In the 2009 case of James "Jim" Brown v. Electronic Arts, Inc., the District Court of the Central District of California dismissed athlete Jim Brown's theory of false endorsement under the Lanham Act and determined that the First Amendment protects the unauthorized use of a trademark in an artistic work when the mark has artistic relevance to the work and does not explicitly mislead as to the source or content of the work. Applying this test, the court found a lack of implied endorsement and held that the First Amendment protected Electronic Arts in its use of a virtual football player that resembled Mr. Brown.
U.S. states that recognize rights of publicity
^In New York, the "Supreme Court" is a trial-level court, equivalent to what is called "Superior Court" in other states. The court equivalent to what most states call a "Supreme Court" is the New York Court of Appeals.
^As seen in cases such as Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). or ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003).
^"Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979).". FindLaw. Retrieved 2007-02-14. "In this decision preceding (and precipitating) the Legislature's enactment of Section 990, the California Supreme Court held that rights of publicity were not descendible in California. Bela Lugosi's heirs, Hope Linninger Lugosi and Bela George Lugosi, sued to enjoin and recover profits from Universal Pictures for licensing Lugosi's name and image on merchandise reprising Lugosi's title role in the 1930 film, "Dracula." The California Supreme Court faced the question whether Bela Lugosi's film contracts with Universal included a grant of merchandising rights in his portrayal of Count Dracula, and the descendibility of any such rights. Adopting the opinion of Justice Roth for the Court of Appeal, Second Appellate District, the court held that the right to exploit one's name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime. Lugosi, 603 P.2d at 431."
^"Who Can Inherit Fame?". Time (magazine). July 7, 1980. Retrieved 2007-07-21. "Ten years later, the son and the widow of Bela Lugosi, star of the Dracula films, tried to take this doctrine a step further. They argued that this right was essentially property and therefore should pass on to heirs. In a California suit, they asked the courts to stop Universal Pictures from merchandising 70 Dracula products, ranging from jigsaw puzzles to belt buckles, and sought compensation based on the profits. Citing the First Amendment, Universal replied that the design of merchandise is a form of free speech that should not be restrained by anyone's heirs. Besides, said Universal's lawyer, Robert Wilson, Lugosi "attained fame and fortune because the company made and distributed the movies he starred in." After eleven years of wrangling, a trial judge decided in favor of the Lugosis, giving them $70,000 and barring Universal from merchandising Lugosi's likeness. ... In December the California Supreme Court reversed the Lugosi decision."
^"Cruise and Kidman sue over ad". BBC News. September 20, 2002. Retrieved June 19, 2012. "Cruise and Kidman claim the unauthorised use of their image for the advert had made them ‘involuntary models without pay’. [...] They are seeking damages for violation of the Lanham Act, a US law designed to protect against trademark infringement and unfair competition such as false advertising."
^Dillinger LLC v. Electronic Arts Inc., 795 F.Supp.2d 829 (S.D. Ind. 2011) (“... the Court finds that the Indiana Supreme Court would agree with Shaw: Indiana’s right-of-publicity statute doesn’t apply to personalities who died before its enactment.”).
^"The New Grave Robbers". New York Times. March 27, 2011. Retrieved 2011-03-28. "In a case involving Marilyn Monroe, the California Legislature even created a retroactive right of publicity, establishing new private property interests in the identities of the long dead. (It didn’t work, because a court later found that Monroe was a resident of New York when she died. Her identity remains in the public domain.)"