Rights of Publicity

AuthorLynne Boisineau and Ben Manevitz
Pages255-298
255
6
Rights of Publicity
Lynne Boisineau
Ben Manevitz1
Takeaways
The right of publicity is an individual’s right to prevent
others from commercially exploiting his or her identity,
such as voice, name, likeness, image, and so on, without
permission. This right is given to everyone, not just to
celebrities, but it does not apply to nonhumans (e.g.,
entities, groups, institutions, or animals).
If you violate someone’s right of publicity, you can be
forced to edit, remove, or take down the content in
question and/or pay monetary damages to the individual
based on the commercial value of that person’s identity.
In the United States, the right of publicity is unevenly
protected, with many states having no protection at
all or only common law protection. In contrast, other
states not only have statutes in place, but some of those
statutes offer post-mortem protection lasting decades
after the deceased individual has passed.
The right of publicity is typically owned by the person
whose name, likeness, image, or voice is being used, but
it can be owned by that person’s heirs, assigned away,
or licensed to a third party.
1. Lynne Boisineau is the founding partner of Boisineau Law.
Ben Manevitz is principal of the Manevitz Law Firm. For complete
author biographies, see the Contributors section of this book.
RIGHTS OF PUBLICITY
256
Virtual reality and augmented reality present unique challenges to the
protection and enforcement of the right of publicity, not just with
respect to avatars, but also humans who may be visible in augmented
reality environments.
The First Amendment is a defense to a right of publicity claim, but
limits apply. For example, video games are entitled to First Amendment
protection, and courts struggle to balance right of publicity claims
against the First Amendment defenses.
Introduction
In the United States, the right of publicity protects a person’s iden-
tity in the form of persona, name, likeness, image, and/or voice
from unauthorized commercial use by another. The right of public-
ity has its origins in privacy law. Specifically, the misappropriation
of the name or likeness of another is one of the four privacy claims
listed in the Restatement (Second) of Torts.2 However, New York led
the charge in 1903, enacting the first statute designed specifically
to protect an individual’s right of publicity.3
To date, the right of publicity suffers from uneven protection,
ranging from very narrow to broad. In some states, only military
personnel are protected. In others, the right of publicity applies to
all individuals and even encompasses a post-mortem period.4 The
lack of uniform duration and requirements for bringing a right of
publicity claim in a particular state raises challenges for plaintiffs
and defendants alike in assessing what is at stake, how to analyze
the claim, and what the risks are in pursuing or defending such a
claim. The right of publicity is currently only recognized in roughly
38 states via common law protection, and only 22 states have
codified protection of the right of publicity.5 These state laws vary
greatly in terms of the duration of protection during a person’s
lifetime, whether the particular law protects the person’s image or
2.
RESTATEMENT (SECOND) OF TORTS
§ 652 (1977).
3. Rothman’s Roadmap to the Right of Publicity, New York, http://www
.rightofpublicityroadmap.com/law/new-york (last updated Jan. 11, 2016).
4. Right of Publicity, Statutes & Interactive Map, http://rightofpublicity.com
/statutes (last visited July 26, 2018).
5. Id.
Introduction 257
persona after death, and whether registration or use of the right of
publicity during that person’s lifetime is a prerequisite to access-
ing that protection.
The advent of various forms of technology such as virtual real-
ity and augmented reality has made this area of law even harder
to predict. Although it is possible to borrow concepts from case
law relating to video games and right of publicity, virtual and
augmented reality uses of a person’s likeness, image, voice, per-
sona, and so on add an extra layer of complexity. Virtual reality
contains only avatars in a fully simulated, digital environment, but
augmented reality incorporates real-world items, buildings, and
humans into a partially digital environment. To the extent that
avatars and digital characters are based on actual humans, right
of publicity issues arise in the same manner as they do in video
games with some exceptions. In a video game, characters may be
secondary to a main purpose, such as dancers in the background
of a bar that is only a fleeting scene in the game, or zombies that
you shoot to get from one place to another on a particular quest.
On the other hand, video game characters may take center stage,
as is the case in sports video games.
Virtual reality, in contrast, can be used in an unlimited number
of ways, not just gaming. It can be used by students to dissect
virtual frogs in a classroom, by chief executive officers for honing
their public speaking skills, by history buffs to explore ancient
Greece, and the like. Given that there are ways that virtual reality
diverges from video games, new problems and issues could arise
that do not fit nicely into the existing video game right of publicity
concepts that have been defined by the courts. Augmented reality
is even more troublesome, since it combines virtual reality with
the real world and will be used in a multitude of ways once the
technology is perfected. In an augmented reality environment, for
example, the viewer sees virtual images and real humans, build-
ings, surroundings, and so on as well. In one recently popular
example, gamers hunting Pokémon in the smartphone game Poké-
mon GO were able to see and take photos of surrounding areas
with virtual characters shown in those scenes, and then post them
on the Internet. While most of these uses were noncommercial,
some were related to advertising or marketing campaigns by local

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