Technically, right of publicity laws apply to everyone, with regards what happens with their likeness. Most of the major cases apply to celebrities, but sometimes a regular person believes that their rights have been transgressed or that they have been insulted or defamed.
A frequently cited example is when teenager Alison Chang had her photo uploaded by her youth counselor to Flickr, who put a Creative Commons-Attribution license on it. It was then used by Virgin Mobile in a bus stop ad campaign with the slogan “Dump Your Pen Friend”. She felt insulted and her family sued Virgin Mobile.
Usually, right of publicity cases involve misappropriation of a person’s likeness for a commercial purpose. Generally, requesting or documenting permission or generating a talent release to use the person’s likeness is sufficient, but you need to know when this is necessary. The right of publicity is governed by the laws of individual states, and so differs from copyright and trademark, which are governed by federal law. Some states do not recognize a right of publicity, so you have to be familiar with the laws of the state where the person whose image you are using resides.
The laws concerning right of publicity usually allow what is known as “transformative use”, or using the person’s image in a way that is creative and original to a work. This is in contrast to just exploiting the individual’s persona to make money. This is not always straightforward determination, though, and people who thought they were making transformative use have been successfully prosecuted. Please see “The Right of Publicity’s Place in Intellectual Property Law” from the Chicago-Kent Journal of Intellectual Property for more examples and analysis.
Everything in intellectual property is entwined. One use of information that evokes an individual’s persona may infringe on not only right of publicity, but also on copyright or trademark. So, getting the copyright for a photo, or deciding that you will claim fair use, for instance, does not imply that you have acquired the permission to use that individual’s photo for your work, or vice versa. Attorney Rich Stim notes in his article “When to Use a Release” that you may not necessarily need a release for a documentary film or news article, but be sure not to defame someone or invade their right to privacy. He also says though, that if you are in doubt, you should get a release.
Keeping a scrupulous document of chain of title documentation is essential, which includes the documentation on subject releases and talent or model releases. If you don’t have a release, then news, commentary, or public interest purposes are more likely to be deemed legal. If there is any possibility that a person, depiction, or character could be confused with another person, it may be wise to put in a disclaimer. And if you do intend to create a work that defames someone, you should have a very, very good reason and make sure that you are absolutely sure of your facts. In any case, do your research beforehand and if you have any questions, consult a lawyer. For more detailed information, please see the article “Self-Defense for Filmmakers” from attorney Mark Litwak.
For celebrities, right of publicity governs the use of information that evokes an association with a person in the form of a similarity to their image or voice (and in some instances, catchphrases or objects, e.g., vehicles). This also goes for the use of look-alikes and sound-alikes. In one of the most famous right of publicity cases, Bette Midler successfully sued Ford Motor Company because they used a sound-alike performer to sing a jingle in a commercial. See the article “A Brief History of Right of Publicity” from attorney Jonathan Faber for more discussion and cases. Since most celebrities (and their estates) have great stock in their persona, right of publicity is an area where you should tread especially lightly.
In some cases, the right of publicity does not stop after the celebrity’s death. Because the right is state-based, though, it means that some celebrities’ estates have more ability to sue over the use of their likeness than others. For example, Elvis’ persona is fully covered by right of publicity laws that were enacted in Tennessee after he died. But since Marilyn Monroe’s estate tried to avoid taxes after she died by claiming her home as New York, her likeness does not have the same protections, as New York did not have a right of publicity law in place when she died. However, her estate uses trademark law to attempt to regulate misuse of her persona. See the articles “Elvis and Prince: Personality Rights Guidance for Dead Celebrities and the Lawyers and Legislatures Who Protect Them” from the National Law Review and “Use My Likeness? Over My Dead Body!” from JD Supra for more details.
Also, when you are working with actors, you will need to generate talent releases and get permission to use their likeness in your work. It would be wise to check out a book or training that will guide you to the methods and paperwork that you need. There should be some good resources on the Books and Trainings page on this site.
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