Right of Publicity


In May 2006, Cingular Wireless issued a press release containing information about Cingular’s preparedness for disasters, such as hurricanes, through its “MACH1” and “MACH2” mobile command centers.  Playing off the “MACH” name, the press release compares the significance of Cingular’s mobile command centers with the achievement of legendary test pilot Chuck Yeager in breaking the sound barrier and achieving Mach 1. General Yeager sued bringing claims for, among other things, violation of California common law and statutory right of publicity.  Cingular, now AT&T, brought a motion for summary disposition on the grounds that (1) the First Amendment protects the press release because it contains newsworthy matter and is not commercial speech, and (2) the use of Yeager’s name was “fleeting and inconsequential”. After all, AT&T argued, the press release did not include a picture of Yeager, did not mention his name in any headline or headings, did not offer for sale any specific products or services, and certainly did not state that Yeager endorses the company or any of its products or services.  The connection between the new mobile service and Yeager’s feat may be tenuous (and, okay, stupid) but Yeager’s accomplishment is, after all, an historical fact.  Is this really something Yeager should be able to control, even in a quasi-commercial context, where there isn't a clear message of endorsement? The district judge apparently thought so, and earlier this month denied AT&T’s motion.  Although press releases serve both commercial and news reporting functions, the judge determined that the press release, in this case, was primarily commercial in nature.  ...


CBS Interactive Inc. v. National Football League Players Association is the most recent case permitting the commercial use of professional athlete's names and statistics without permission. CBS Interactive operates the website CBSSports.com.  The NFL Player's Association acts as the exclusive collective bargaining representative for active players in the NFL.  Among other things, the NFLPA has the right to license the use of the individual players' names, signatures, facsimile, voices, pictures, photographs, likenesses, and biographical information in connection with "group licensing programs" involving six or more players (e.g., fantasy sports, video games, etc.).  NFLPA assigned this right to Players, Inc. in exchange for royalties.  Players, Inc. in turn licenses this right to companies like CBS to use in programs such as fantasy sports.  In fact, for several years CBS did just that, running both free and "pay for play" versions of its fantasy league under a license agreement with Player, Inc. However, in 2008, CBS refused to renew its license after the Eighth Circuit in C.B.C Distribution and Marketing Inc v. Major Leage Baseball Advanced Media determined that use of baseball players' names and statistics did not violate any right of publicity, but that even if it did, persons enjoyed a First Amendment right to use the players' names and statistics that prevailed over any right of publicity.  When Players, Inc. threatened to sue, CBS brought an action for declaratory judgment that its use of player information was permissible under the CBC case.  The Minnesota District Court in the CBS case agreed. The NFLPA and Players, ...


"A 12-person jury deliberated six hours over two days in January before awarding [the plaintiff] $50,000 in compensatory damages.  The verdict made him the first plaintiff awarded damages in a libel suit against a blogger....The case is one of at least 50 similar suits filed in the past several years." -- Kansas City Daily News, October 26, 2006 "Social media - always fun until someone gets sued." -- FP Legal Post, March 16, 2009 What are blogs, wikis, and online forums? Blogs, wikis, and online forums are part of the Web 2.0 social media explosion that are changing the way we do business and work with each other. Web 2.0 represents one of the greatest opportunities of our lifetime to share ideas and work collaboratively. However, Web 2.0 also represents one of the newest legal threats to people and companies utilizing these tools.  Whether you are new to Web 2.0 or a relative old-timer, you have probably witnessed more and more stories every day about people and companies getting in trouble for what they or their users have posted online. What legal liability issues can arise from my blog, wiki, or online forum? Generally, you face the same liability issues as anyone making a publication available to the public. The main legal liability issues include: Defamation Intellectual Property (Copyright/Trademark) Trade Secret Right of Publicity Invasion of Privacy Whenever you open the Web 2.0 door, inevitably someone will publish information or post content that others don't want published.  Someone might, for example, publish something that someone considers defamatory or private, republish someone's copyrighted content without permission, or misuse or ...


  I came across a terrific article recently about a case involving a small business owner's sale of books online.  The full article can be read here.  The online merchant would buy books literally by the pound from publishers looking to liquidate their old inventory.  The merchant would then photograph the covers, post the images online with a brief synopsis, and then sell the books for a profit.  One such book, with a rather interesting history, featured a young girl on the cover.  The girl sued the merchant's Internet service provider (ISP) in her home state of Florida for violation of her right of publicity, civil theft, and invasion of privacy.  The ISP claimed immunity under the Federal Communications Decency Act (CDA) which protects ISPs from state law claims.  I've discussed the CDA previously here.  The 11th Circuit, reviewing the case on appeal, did not take up the CDA defense and instead found for the ISP on much more sensible grounds.  From the article: "What was the difference," the court asked, "between this person who sells books on the Internet and Barnes & Noble? Only that one is bricks and mortar and the other is cyber.  In both cases customers walk up and down the isles viewing the offered books and evaluating them for purchase.  We see little difference if a customer views the cover on-line or walks down the aisle at the store; the same purpose is served."  ....  It followed, then, that the use by my friend [the merchant] of the photo ...


Right of Publicity and Political Figures

A client recently sent me this article about the family of the late Rev. Martin Luther King Jr. (MLK) "demanding a share of the proceeds from the sudden wave of T-shirts, posters and other merchandise depicting the civil rights leader alongside Barack Obama."  The family is asserting MLK's right of publicity (i.e., the right to control and commercially exploit his name and image for profit), which passed to his heirs after his death.  While it is not at all unusual for the heirs of a deceased celebrity to police unauthorized commercial exploitation of the celebrity's name and image, this paragraph from the article struck me as slightly off the mark: "King's writings, likeness and voice are considered intellectual property, and almost any use - from graduate thesis papers to TV documentaries - are subject to approval by his estate, now administered by his surviving children, Martin Luther King III, Dexter King and the Rev. Bernice King.  (Because Obama is an elected official, his words and image are in the public domain and can be used without permission.)" While right of publicity cases and outcomes can vary greatly depending on the particular facts and state law at issue (right of publicity law is slightly different state by state), it is not generally true that use of a celebrity's name and image in a thesis paper or documentary requires the prior consent of the celebrity or the celebrity's heirs.  Thesis papers (scholarship) and documentaries (news reporting) are at the core of First Amendment and fair use protection.  As ...


Is Fido ready for his close up?

  To date, no court has held that animals have a "right of publicity" akin to that enjoyed by humans.  To my knowledge, there have only been three cases on this issue.  In a New York case, a trial court held that the plaintiff could not invoke New York's right of publicity statute on behalf of her pet dog when a dog biscuit company used the pooch's image, without the owner's permission, in an advertisement.  In a similar case in Missouri, an appeals court reversed a $5,000 jury verdict when the image of the plaintiff's horse was used in an advertisement, also without permission.  The only other known case comes from Japan, where a Japanese court determined that a video game maker was not liable to the owners of race horses for using their horses' names in a video game.  The underlining reasoning behind all of these cases is that the right of publicity is, traditionally, a natural right of every human being to control commercial uses of their identity.  The courts were clearly reluctant to extend this traditional right to animals.  See J. Thomas McCarthy, The Rights of Publicity and Privacy, §§ 4:36-4:38 (2d ed. 2008) (An invaluable resource for anyone practicing in this area of law -ed.). On the other hand, there is no denying that some animals have very valuable publicity values in cases where animals have achieved a high degree of celebrity status.  Obvious examples include Rin Tin Tin, Lassie, Benji, Trigger, the Taco Bell Chihuahua, and Spuds McKenzie, to name a few.  Some ...