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 such, they are generally considered a public benefit and, therefore, protected; even though doing so may deny a celebrity or the celebrity’s heirs the right to control or exploit use of the celebrity’s name and image appearing in such works.

Also, President-Elect Obama’s image is not in the “public domain” any more than MLK’s image is, or any other celebrity for that matter.  Politicians don’t waive their right of publicity when they get elected to office (their right of privacy is a different matter).  Most, however, don’t enforce their publicity rights because of the negative publicity it may invoke.  (Governor Schwarzenegger is an exception and has aggressively policed unauthorized commercial use of his name and image even while holding public office.)  The only difference between your standard Hollywood celebrity and a political figure is that use of the political figure’s name and image may invoke special considerations of First Amendment and fair use protection.

–Matt

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 owners of famous animals have asserted that the commercial exploitation of the photograph of their animal infringes on a “property interest” that the owner has in the animal; a very valuable property interest at that.  Although the protection of that interest through “right of publicity” law is suspect for the time being, it may not be long before a class of “famous” animals gets its day in court along with Hollywood celebrities.

–Matt