Federal and State Claims, Defenses, and Exemptions: A Guide for Legal and Business Advisors

• Author: Weston Anson
• Pages: 47-63

47

Federal and State Claims,

Defenses, and Exemptions:

A Guide for Legal and

Business Advisors

From the start, we’ve pointed out that this is not solely a legal tome. (For that there are

two great legal books on the subject—see Thomas McCarthy, Rights of Publicity and

Privacy,1 and Welkowitz and Ochoa, Celebrity Rights.2) Instead we aim with this book

to help two broad audiences. The legal audience is the first target—those practitioners

who serve the worlds of sports, entertainment, music, advertising, and corporate and

personal endorsements, as well as other aspects of talent and celebrity representation.

The second group, however, is equally as important. It includes that world of both

business and financial professionals in talent management, licensing management,

licensing agencies, financial advisors, personal representation, major event organiza-

tion and marketing, social media, and others who have a direct or tangential interest

in celebrity and sports endorsements. This second group needs the basic grounding in

rights of publicity law covered in these early chapters just as much as our legal audi-

ence does.

This chapter then, is a primer for all these audiences, as well as for the celebrity

talent themselves. This is a primer with two basic purposes: education and prevention.

1.

J. tHOmaS mccartHy, tHe rigHtS Of pubLicity and privacy

(1987).

2.

david S. WeLkOWitz & tyLer t. OcHOa, ceLebrity rigHtS

(2010).

CHAPTER 4

ans50153_04_c04_047-064.indd 47 3/23/15 10:16 AM

48 Right of Publicity: Analysis, Valuation, and Current Legal Status

I. Identication of Paths and Pitfalls in Rights

of Publicity Litigation

The purpose of this chapter is to lay out the important high points of claims, defenses, and

exemptions in rights of publicity cases. Before getting there, however, it’s worth pointing

out that in chapters 1, 2, and 3, we described the origins of rights of publicity law as well

as the arguments for and against rights of publicity, and the existing legal framework for

rights of publicity cases. In particular, in the previous chapter, we laid out the legal frame-

work of law. It is a patchwork of federal law, state statutes, and common law.

We will see here that the claims, exemptions, defenses, and remedies for rights of

publicity also fall under federal and state law and are a further patchwork and network

of pitfalls. You have the Lanham Act with trademark infringement and trademark dilu-

tion. You have state statutes, state precedents, and of course, common law.

The goal then is to provide a basic grounding for the reader in these key elements,

claims, defenses, exemptions, and remedies. This grounding is useful from two points of

view: first as a legal framework so that the average practitioner can understand how this

part of the law works and second as a business framework. For those involved in this

world of celebrity and sports endorsement and licensing, we want to provide an equally

clear picture for them. Finally, as one can see from the material covered in chapters 2 and

3, the patchwork of laws that leads to the patchwork of pitfalls described in this chapter

is unique. It’s highly complex, geographically dependent, subject to constant change, and

continuously bombarded with new precedent and laws—and therefore time dependent.

What is true today may not be true tomorrow in this area of right of publicity law.

II. Prevention

The second purpose of this chapter is very simple—and can be very simply stated. It

is to provide our best effort to help diffuse, deflect, and forestall or in some other way

avoid another squabble over rights of publicity among the uninitiated. There is far too

much litigation and arbitration now over issues that should not have been brought to lit-

igation. By explaining the claims, defenses and exemptions here, it’s our goal to help to

avoid a new incident involving the misuse of someone’s right of publicity—advertently

or inadvertently.

And finally, it’s our overriding goal to help prevent at least one more piece of unnec-

essary litigation that involves a senseless waste of time. A senseless waste of money on

both sides. And a senseless waste of the court’s time, the parties’ expense in developing

court filings, motions, countermotions, and so on—and the waste of a number of dead

trees in the form of tens of thousands of pieces of paper that typically appear in one of

these litigations.

Hopefully, the balance of this chapter will shed a little light on the importance of

these topics and offer a little knowledge—condensed as it is, to help our audiences.

III. Claims under Rights of Publicity

Naturally, as one would suspect, claims can be filed under both federal and state laws.

On the federal side, claims in general fall almost exclusively under federal trademark

ans50153_04_c04_047-064.indd 48 3/23/15 10:16 AM