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 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.
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