Tuesday, May 29, 2012

Right of Publicity: How much are you really worth?

By:  Tifanie Jodeh.      The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.

It gives an individual the exclusive right to license the use of their identity for commercial gain.  Protections have recently been expanded to a celebrity’s “likeness” which can include voice or vocal style. If you have a commercial interest or value to your name and likeness, you are generally afforded protection.   It is a area of intangible personal property that can be marketed and used, assigned or licensed, and,  sometimes, passed down to heirs.

In the United States, the right of publicity is largely protected by state common or statutory law. Only about 19 of the states have statutes or laws recognizing a right of publicity, some of these states include: California, Florida, Massachusetts and Tennessee.  States that recognize the right to publicity in common law only include: Alabama, Arizona, Connecticut, Georgia, Hawaii, Main, Michigan, Minnesota, Missouri, New Jersey and Oregon.

The question becomes how do you value the celebrity’s image in a commercial use?  What more considerations are taken into account when the use was not approved by the celebrity?  And, last, what impact did the unauthorized use have on the celebrity’s future earning capacity. 

An exemplification of this principle can be found in the No Doubt vs. Activision Publishing case.  No Doubt brought an action against video game manufacturer, Activision Publishing, alleging that Activision used No Doubt’s likeness in an unauthorized format in the video game “Band Hero”.   According to the complaint, the Defendant created a game where players have the ability to make lifelike embodiments (an Avatar) of No Doubt singing, dancing and performing.  The Plaintiff and Defendant specifically contracted for animated character representations of the band performing three No Doubt songs.  The contract further stated that any other use would be subject to Plaintiff’s approval.  Instead, the Plaintiff alleged that Defendant created the game to cause members of No Doubt to perform vocally as solo artists without the other band members to over 60 unauthorized songs.  The Plaintiff alleges that they only allowed the name and likeness as a collective group and not individually and, further, that the Avatar function of the games did not allow for the Defendant to manipulate the name and likeness of the band. 

The court found that Plaintiff contracted with Activision so that they would only engage in certain contacted for activities.  Plaintiff controlled the rights it was allowing Activision to incorporate into the videogame.  Subsequently, Defendant engaged in certain additional activities that were not contractually permissible.  Thus, No Doubt had a valid breach of contract cause of action and that they had a valid tort cause of action for violation of the Plaintiff’s right of Publicity.    In other words, No Doubt did not agree to the manner and use of their name and likeness in the game and had not contractually assigned or authorized such use.  No Doubt will likely be granted damages for commercial loss.  

So, the lesson learned?  The best way to avoid a violation of the right of publicity is to obtain an individual's consent to use their name or likeness in a commercial product.  You can obtain a simple assignment of name and likeness rights release or negotiate out a licensing deal for authorized use of these rights. 

COPYRIGHT & DISCLAIMER

Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact her at Tifanie@entlawpartners.com.

Tifanie Jodeh grants column recipients permission to copy and distribute this column and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.

DISCLAIMER: Readers should consult with a lawyer before solely relying on any information contained herein.