Introduction

• Jurisdiction: Maryland

I. INTRODUCTION

Publicity rights—the right to control one's name, likeness, and certain other personal characteristics—often arise in matters involving celebrities, as recent cases involving Muhammed Ali,¹ Madonna, Stan Lee,² Lindsay Lohan, Olivia DeHavilland, and Thelonius Monk illustrate. Originating in privacy law, publicity rights are often asserted in cases involving the unauthorized commercial use of names and images of well-known musicians, actors, athletes, performers, models, and others whose personas have established commercial value, typically in the context of the sale of goods or services. The evolved law surrounding publicity rights, however, is not restricted to invocation by celebrities.

Maryland courts recognize a person's exclusive right to control the commercial use of his or her name or likeness as a common law right of privacy.³ Because the right vests in persona, it does not extend, under Maryland law, to non-human animals, buildings, places, or other things.⁴ And because it is a personal right, the right to control the use of one's name and/or likeness under Maryland law extinguishes upon the person's death and is non-descendible (i.e., the right cannot pass intestate or otherwise to the deceased's heirs). A person may license his or her rights to another under Maryland law, thereby allowing another to control the commercial exploitation of the person's name and/or likeness.⁵

A person who believes his or her name or likeness has been appropriated by another without consent may bring an action in tort to seek remedies, such as an injunction and monetary damages. Although being considered "famous," a public figure, or to have achieved a degree of celebrity is not necessary to assert a misappropriation action against another in Maryland, a plaintiff must demonstrate his or her name or likeness has commercial or other value to prevail in such an action.⁶ Generally, damages may be recoverable for plaintiff's lost licensing opportunities and lost profits, as applicable, due to a defendant's use of plaintiff's name and/or likeness. Damages may also be awarded if the plaintiff can show injury to his or her reputation, such as by the defendant's association of the plaintiff's name or likeness with a particular product or service that the plaintiff would, or has, not endorsed.⁷ Damages may also be awarded if the plaintiff can show mental or emotional distress.

While a person using another's persona⁸ for commercial purposes should exercise caution, not all uses of another's name and/or likeness are actionable. For example, an "incidental use" that does not involve the commercial exploitation of the person's name and/or likeness, such as photographs used in certain advertisements or a person's name listed in motion picture credits, may not be actionable under Maryland's publicity right of privacy law.⁹ Moreover, use of another's name and/or likeness is not actionable where the defendant can show that plaintiff granted permission to defendant for the use of plaintiff's name and/or likeness.¹⁰ on the other hand, a person who appropriates another's name and/or likeness without permission for commercial purposes usually may not assert that such use was protected free speech under the First Amendment.¹¹

Today, courts, attorneys, and the media regularly refer to the right of privacy as a right of publicity because some states (not Maryland, as explained below) have enacted statutes directed specifically to the right of publicity (although some state statutes still refer to such rights as an invasion of the right of privacy). In some states (e.g., California, Pennsylvania, Tennessee), both statutory law and common law may

be applicable in a particular matter; in other states (e.g., New York), statutory right of privacy (publicity) laws preempt that state's common laws. In some states, the publicity right of privacy is protected under common law unfair competition, "passing off," and trademark law. The federal Lanham Act (§ 1125) may also be used to protect a person's identity in the case of false advertisements related to a product or to suggest that product's origin. Some courts (e.g., California and New York), have recognized trademark rights in an individual's persona,¹² and some have not. Publicity laws in some states cover not only a person's persona, but extend to the unauthorized use and exploitation of that person's voice, sound-alike voice,¹³ signature, nicknames, first name, roles or characterizations performed by that person (i.e., celebrity roles),¹⁴ personal catch phrases, identity, and objects closely related to or associated with the...