Personality rights
Encyclopedia
"Personality rights" is a common or casual reference to the proper term of art "Right of Publicity". The Right of Publicity can be defined simply as 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). 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.
Personality rights are generally considered to consist of two types of rights: the right to 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 States
jurisprudence
has substantially extended this right in the United States of America.
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). Many commentators consider the Right of Publicity to be a property right, as opposed to a personal right.
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.
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 jurisdiction
s 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.
rs 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.
The Koala
Dundee case (1988) 12 IPR 508 was a decision of the Federal Court of Australia
. The applicant was a script writer and actor whose fame came from the film "Crocodile Dundee
". The respondents ran two small shops which sold clothing and other items of an Australia
n nature. The applicant sought an injunction to restrain the respondents from using the name "Dundee" in association with a composite image "the koala image". The applicant advanced a case in passing off alleging such use was calculated to induce the public to believe the goods sold were associated with the film or the character portrayed by the applicant in it. The court granted the relief holding that the inventor of a famous fictional character having certain visual or other traits may prevent other using his character to sell goods and may assign the rights to use that character. This "extended action of passing off" protects against the wrongful appropriation of a reputation, or wrongful association of goods with an image belonging to the applicant.
In the Pacific Dunlop case (1989) 14 IPR 398, the Federal Court of Australia affirmed a decision which upheld an action in passing off. The plaintiff sued the defendants for a television advertisement which was easily recognizable as being a parody of a scene from the plaintiff's film "Crocodile Dundee
". The Federal Court said the test was whether a significant section would be misled into believing that a commercial arrangement had been concluded between the defendants and the plaintiff under which the plaintiff agreed to the advertising.
. 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.
that enshrines the right to privacy as an attribute of personality. This right is set forth Article 3.
The chapter in the new Code dealing with respect of reputation and privacy defines the invasion of privacy in article 36:
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:
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.
have followed the Australian development of the law. In the Mirage Studios case [1991] FSR 145, Browne-Wilkinson, V.C., after referring to the Australian cases of Children's Television Workshop v. Woolworths
(NSW) Ltd. [1981] RPC 187 and Fido Dido Inc. v. Venture Stores (Retailers) 16 IPR 365, said the law as developed in Australia is sound. There is no reason why a remedy in passing off should not cover a case where the public is misled in a relevant way as to a feature or quality of the goods sold when an action is brought by the people with whom the public associate that feature or quality. An interim injunction
was granted. The first plaintiff was the owner of the copyright
in the drawings of fictitious humanoid characters known as "Teenage Mutant Ninja Turtles
" and part of their business was to license the reproduction of these characters on goods sold by others. The first defendant made drawings of humanoid turtles characters similar in appearance to the first plaintiff's, utilizing the concept of turtles rather than the actual drawings of Turtles.
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 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.
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):
, the main case on this point is the ongoing dispute between Cantopop
singer/actor Andy Lau
and Hang Seng Bank
over the allegedly unauthorized use of Lau's image on credit card
s.
in a 2002 case involving the estate of Bob Marley
has it been found anywhere in a common law jurisprudence that a personality right may be transferred by disposition.
, 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.
in the United States
, and is still sometimes considered (erroneously) a "subset" of privacy rights. Some might consider it the right to charge for (or bar entirely) the commercial exploitation of name, likeness, voice or "personality." 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 the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866
(2d Cir.
).
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 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. 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
, gesture
s, 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 descendible 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.
State law
In the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...
-based right, as opposed to Federal, and recognition of the right can vary from state to state.
Personality rights are generally considered to consist of two types of rights: the right to 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
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
; 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, publicity rights fall into the realm of the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of passing off
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
. United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
has substantially extended this right in the United States of America.
A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights
Natural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable...
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
Commercial speech
Commercial Speech is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product...
(which in turn receives the lowest level of judicial scrutiny). Many commentators consider the Right of Publicity to be a property right, as opposed to a personal right.
Civil law and common law jurisdictions
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions have specific civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
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.
Personality rights have developed out of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
concepts of property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
and intentional tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. Thus personality rights are, generally speaking, judge-made law, though there are jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s 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
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
and a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
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
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of passing off
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
.
The meaning of the law is best illustrated by principal cases on the subject.
Australia
The Henderson case [1969] RPC 218 was a decision of the High Court of New South Wales (both the first instance and appellate jurisdiction). The plaintiffs were ballroom danceBallroom dance
Ballroom dance refers to a set of partner dances, which are enjoyed both socially and competitively around the world. Because of its performance and entertainment aspects, ballroom dance is also widely enjoyed on stage, film, and television....
rs 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.
The Koala
Koala
The koala is an arboreal herbivorous marsupial native to Australia, and the only extant representative of the family Phascolarctidae....
Dundee case (1988) 12 IPR 508 was a decision of the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. The applicant was a script writer and actor whose fame came from the film "Crocodile Dundee
Crocodile Dundee
"Crocodile" Dundee is a 1986 Australian comedy film set in the Australian Outback and in New York City. It stars Paul Hogan as the weathered Mick Dundee and Linda Kozlowski as Sue Charlton....
". The respondents ran two small shops which sold clothing and other items of an Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n nature. The applicant sought an injunction to restrain the respondents from using the name "Dundee" in association with a composite image "the koala image". The applicant advanced a case in passing off alleging such use was calculated to induce the public to believe the goods sold were associated with the film or the character portrayed by the applicant in it. The court granted the relief holding that the inventor of a famous fictional character having certain visual or other traits may prevent other using his character to sell goods and may assign the rights to use that character. This "extended action of passing off" protects against the wrongful appropriation of a reputation, or wrongful association of goods with an image belonging to the applicant.
In the Pacific Dunlop case (1989) 14 IPR 398, the Federal Court of Australia affirmed a decision which upheld an action in passing off. The plaintiff sued the defendants for a television advertisement which was easily recognizable as being a parody of a scene from the plaintiff's film "Crocodile Dundee
Crocodile Dundee
"Crocodile" Dundee is a 1986 Australian comedy film set in the Australian Outback and in New York City. It stars Paul Hogan as the weathered Mick Dundee and Linda Kozlowski as Sue Charlton....
". The Federal Court said the test was whether a significant section would be misled into believing that a commercial arrangement had been concluded between the defendants and the plaintiff under which the plaintiff agreed to the advertising.
Canada
Canadian common law recognizes the right to personality on a limited basis. It was first acknowledged in the 1971 Ontario decision of Krouse v. Chrysler Canada Ltd.Krouse v. Chrysler Canada Ltd.
Krouse v. Chrysler Canada Ltd. , 5 C.P.R. 30, is generally thought to be the first case to clearly acknowledge the existence in Canada of a tort of appropriation of personality.-Background:...
. 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.
Quebec
There are certain provisions on rights in the new Civil Code of QuebecCivil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
that enshrines the right to privacy as an attribute of personality. This right is set forth Article 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.
The chapter in the new Code dealing with respect of reputation and privacy defines the invasion of privacy in article 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.
Denmark
In DenmarkDenmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. 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.
England and Wales
England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
have followed the Australian development of the law. In the Mirage Studios case [1991] FSR 145, Browne-Wilkinson, V.C., after referring to the Australian cases of Children's Television Workshop v. Woolworths
Woolworths Limited
Woolworths Limited is a major Australian company with extensive retail interest throughout Australia and New Zealand. It is the:* largest retail company in Australia and New Zealand by market capitalisation and sales...
(NSW) Ltd. [1981] RPC 187 and Fido Dido Inc. v. Venture Stores (Retailers) 16 IPR 365, said the law as developed in Australia is sound. There is no reason why a remedy in passing off should not cover a case where the public is misled in a relevant way as to a feature or quality of the goods sold when an action is brought by the people with whom the public associate that feature or quality. An interim injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
was granted. The first plaintiff was the owner of the copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
in the drawings of fictitious humanoid characters known as "Teenage Mutant Ninja Turtles
Teenage Mutant Ninja Turtles
The Teenage Mutant Ninja Turtles are a fictional team of four teenage anthropomorphic turtles, who were trained by their anthropomorphic rat sensei in the art of ninjutsu and named after four Renaissance artists...
" and part of their business was to license the reproduction of these characters on goods sold by others. The first defendant made drawings of humanoid turtles characters similar in appearance to the first plaintiff's, utilizing the concept of turtles rather than the actual drawings of Turtles.
France
In FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan 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
François Mitterrand
François Maurice Adrien Marie Mitterrand was the 21st President of the French Republic and ex officio Co-Prince of Andorra, serving from 1981 until 1995. He is the longest-serving President of France and, as leader of the Socialist Party, the only figure from the left so far elected President...
called Le Grand Secret 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.
Germany
In GermanyGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
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
Basil Markesinis
Sir Basil Markesinis QC, DCL, FBA is a scholar of law and Jamail Regents Professor at the University of Texas at Austin, and was Professor of Common and Civil Law, University College London.-Early life and education :...
, ‘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).
Hong Kong
In Hong KongHong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
, the main case on this point is the ongoing dispute between Cantopop
Cantopop
Cantopop is a colloquialism for "Cantonese popular music". It is sometimes referred to as HK-pop, short for "Hong Kong popular music". It is categorized as a subgenre of Chinese popular music within C-pop...
singer/actor Andy Lau
Andy Lau
Andy Lau MH, JP is a Hong Kong Cantopop singer, actor, and film producer. Lau has been one of Hong Kong's most commercially successful film actors since the mid-1980s, performing in more than 160 films while maintaining a successful singing career at the same time...
and Hang Seng Bank
Hang Seng Bank
Hang Seng Bank Limited is the second largest bank in Hong Kong. It is a listed company but it is majority owned by the HSBC Group via The Hongkong and Shanghai Banking Corporation. Hang Seng is also one of the constituent shares of the Hang Seng Index...
over the allegedly unauthorized use of Lau's image on credit card
Credit card
A credit card is a small plastic card issued to users as a system of payment. It allows its holder to buy goods and services based on the holder's promise to pay for these goods and services...
s.
Jamaica
Only in JamaicaJamaica
Jamaica is an island nation of the Greater Antilles, in length, up to in width and 10,990 square kilometres in area. It is situated in the Caribbean Sea, about south of Cuba, and west of Hispaniola, the island harbouring the nation-states Haiti and the Dominican Republic...
in a 2002 case involving the estate of Bob Marley
Bob Marley
Robert Nesta "Bob" Marley, OM was a Jamaican singer-songwriter and musician. He was the rhythm guitarist and lead singer for the ska, rocksteady and reggae band Bob Marley & The Wailers...
has it been found anywhere in a common law jurisprudence that a personality right may be transferred by disposition.
People's Republic of China
In the People's Republic of ChinaPeople's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, 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.
Spain
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.United States
The right of publicity evolved out of the right of privacyPrivacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, and is still sometimes considered (erroneously) a "subset" of privacy rights. Some might consider it the right to charge for (or bar entirely) the commercial exploitation of name, likeness, voice or "personality." 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
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. 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
Jerome Frank
Jerome New Frank was a legal philosopher who played a leading role in the legal realism movement and a judge of the United States Court of Appeals for the Second Circuit.-Biography:...
in the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2d Cir.
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
).
The extent of recognition of this right in the U.S. is largely driven by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
or case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
. Because the Right of Publicity is 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. Indiana
Indiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
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
Signature
A signature is a handwritten depiction of someone's name, nickname, or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying...
, photograph
Photograph
A photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
, gesture
Gesture
A gesture is a form of non-verbal communication in which visible bodily actions communicate particular messages, either in place of speech or together and in parallel with spoken words. Gestures include movement of the hands, face, or other parts of the body...
s, 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
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
and California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, 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 descendible to the person's heirs after their death. The Celebrities Rights Act was passed in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
in 1985 and it extended the personality rights for a celebrity to 70 years after their death. Previously, the 1979 Lugosi v. Universal Pictures
Lugosi v. Universal Pictures
In Lugosi v. Universal Pictures, 603 P.2d 425 , the heirs of Béla Lugosi sued Universal Studios in 1966 for using his personality rights without the heirs' permission...
decision by the California Supreme Court held that Bela Lugosi
Béla Lugosi
Béla Ferenc Dezső Blaskó , commonly known as Bela Lugosi, was a Hungarian actor of stage and screen. He was best known for having played Count Dracula in the Broadway play and subsequent film version, as well as having starred in several of Ed Wood's low budget films in the last years of his...
's personality rights could not pass to his heirs.
- In 1977, in the case of Zacchini v. Scripps-Howard Broadcasting Co.Zacchini v. Scripps-Howard Broadcasting Co.Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 , was an important U.S. Supreme Court case concerning rights of publicity. The Court held that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer's entire act without his...
, the U.S. Supreme Court held that the First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
did not immunize a television stationTelevision stationA television station is a business, organisation or other such as an amateur television operator that transmits content over terrestrial television. A television transmission can be by analog television signals or, more recently, by digital television. Broadcast television systems standards are...
from liability for broadcasting Hugo ZacchiniHugo ZacchiniHugo Zacchini was the first human cannonball. His father Ildebrando Zacchini invented the compressed-air cannon used to propel humans in circus acts....
's human cannonballHuman cannonballThe human cannonball is a performance in which a person is ejected from a specially designed cannon. The impetus is provided not by gunpowder, but by either a spring or jet of compressed air...
act without his consent. This was the first, and so far the only, U.S. Supreme Court ruling on rights of publicity. - In September 2002, Tom CruiseTom CruiseThomas Cruise Mapother IV , better known as Tom Cruise, is an American film actor and producer. He has been nominated for three Academy Awards and he has won three Golden Globe Awards....
and Nicole KidmanNicole KidmanNicole Mary Kidman, AC is an American-born Australian actress, singer, film producer, spokesmodel, and humanitarian. After starring in a number of small Australian films and TV shows, Kidman's breakthrough was in the 1989 thriller Dead Calm...
sued luxury goods company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumePerfumePerfume is a mixture of fragrant essential oils and/or aroma compounds, fixatives, and solvents used to give the human body, animals, objects, and living spaces "a pleasant scent"...
s. - A recent example is John DillingerJohn DillingerJohn Herbert Dillinger, Jr. was an American bank robber in Depression-era United States. He was charged with, but never convicted of, the murder of an East Chicago, Indiana police officer during a shoot-out. This was his only alleged homicide. His gang robbed two dozen banks and four police stations...
's rights of publicity, as seen in Ken Phillips, Mark Phillips and Dillinger’s, Inc. v. Jeffrey G Scalf, a 2003 Indiana Court of AppealsIndiana Court of AppealsThe Indiana Court of Appeals is the intermediate-level appellate court for the state of Indiana. It is the successor to the Indiana Appellate Court.-History:...
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 gangsterGangsterA gangster is a criminal who is a member of a gang. Some gangs are considered to be part of organized crime. Gangsters are also called mobsters, a term derived from mob and the suffix -ster....
and bank robber John Dillinger, in using without authorization Dillinger’s name, image, and likeness in connection with the restaurant. - In March 2003, eight members of the cast of The SopranosThe SopranosThe Sopranos is an American television drama series created by David Chase that revolves around the New Jersey-based Italian-American mobster Tony Soprano and the difficulties he faces as he tries to balance the often conflicting requirements of his home life and the criminal organization he heads...
alleged that electronics retailer Best BuyBest BuyBest Buy Co., Inc. is an American specialty retailer of consumer electronics in the United States, accounting for 19% of the market. It also operates in Mexico, Canada & China. The company's subsidiaries include Geek Squad, CinemaNow, Magnolia Audio Video, Pacific Sales, and, in Canada operates...
used their images in newspaper ads without permission. - In the July 2003 case of Tiger Woods v. Jireh Publishing, however, a painting of the famous golfGolfGolf is a precision club and ball sport, in which competing players use many types of clubs to hit balls into a series of holes on a golf course using the fewest number of strokes....
er Tiger WoodsTiger WoodsEldrick Tont "Tiger" Woods is an American professional golfer whose achievements to date rank him among the most successful golfers of all time. Formerly the World No...
and others is protected by the US Constitution's First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and treads neither on the golfer's trademarkTrademarkA trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
s nor publicity rights. Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit. The 6 May 2005 Toney v. L'Oreal and Wella opinion clarified the distinction between the purview of copyright versus the nature of publicity rights. - The 2006 New York CountyManhattanManhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...
Supreme CourtNew York Supreme CourtThe Supreme Court of the State of New York is the trial-level court of general jurisdiction in thestate court system of New York, United States. There is a supreme court in each of New York State's 62 counties, although some smaller counties share judges with neighboring counties...
case Nussenzweig v. DiCorciaNussenzweig v. DiCorciaNussenzweig v. diCorcia is a decision by the New York Supreme Court in New York County, holding that a photographer could display, publish, and sell street photography without the consent of the subjects of those photographs....
determined that personality rights do not trump legitimate First Amendment rights of artistic free expression. This case is currently under appeal in the New York courts. - In 2008, a federal judge in California ruled that Marilyn MonroeMarilyn MonroeMarilyn Monroe was an American actress, singer, model and showgirl who became a major sex symbol, starring in a number of commercially successful motion pictures during the 1950s....
'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 BrownJim BrownJames Nathaniel "Jim" Brown is an American former professional football player who has also made his mark as an actor. He is best known for his exceptional and record-setting nine-year career as a running back for the NFL Cleveland Browns from 1957 to 1965. In 2002, he was named by Sporting News...
's theory of false endorsement under the Lanham ActLanham ActThe Lanham Act is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.-History:Named for Representative Fritz G...
and determined that the First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
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 Electonic Arts in its use of a virtual football player that resembled Mr. Brown.
U.S. states that recognize rights of publicity
- CaliforniaCaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, see Celebrities Rights Act - IndianaIndianaIndiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
- New YorkNew YorkNew York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
- Florida
- IllinoisIllinoisIllinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, See 765 ILCS 1075, the Illinois Right of Publicity Act, eff. 1-1-1999. - Kentucky
- Massachusetts
- Nebraska
- Nevada
- Ohio
- Oklahoma
- Pennsylvania
- Rhode Island
- Tennessee
- Texas
- Utah
- Virginia
- Washington
- WisconsinWisconsinWisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
, Current through 1997 Act 338, published 7/3/1998
See also
- Celebrities Rights Act
- Moral rights
- Public recordsPublic recordsPublic records are documents or pieces of information that are not considered confidential. For example, in California, when a couple fills out a marriage license application, they have the option of checking the box as to whether the marriage is "confidential" or "Public"...
External links
- Text of every individual state's right of publicity statute in the U.S.
- US constitutional constraints on state right of publicity laws by Jerry Marr
- Case of Princess Caroline of Monaco (1995) German Federal Supreme Court (English translation)
- Privacy rights cases under French law (English translation)
- Privacy/personality rights under German law (English translation)
- Personality rights US Library of Congress
- Das Recht am eigenen Bild, speech by G. Hug at a symposium in 2002 in VitznauVitznauVitznau is a municipality in the district of Lucerne in the canton of Lucerne in Switzerland.-History:Vitznau was first mentioned in 998. In the 19th century it became a popular destination for tourism, especially from England; the imposing Park Hotel Vitznau west of town dates from the...
in SwitzerlandSwitzerlandSwitzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
on personality rights in Switzerland regarding the publication of images of people. (In German.) - Legal resource for personality rights cases in the U.S.
- summary of Canadian personality cases
- Personality Rights Database - Personality rights in Argentina, Australia, Canada, France, Germany, Mexico, South Africa, Spain, UK and USA
- Douglas v Hello! - An OK! result, Gillian Black (University of Edinburgh), SCRIPT-edSCRIPT-edSCRIPT-ed is the online journal of the SCRIPT Centre for Studies in Intellectual Property and Technology Law SCRIPT based in the School of Law at the University of Edinburgh...
, June 2007 - Video Gamemaker's Unauthorized Use of Jim Brown's Likeness Protected by the First Amendment by Jack C. Schecter