Legislative Wrap-up

• Publication year: 2015
• Pages: 0256
• Citation: Vol. 76 No. 4 Pg. 0256

LEGISLATIVE WRAP-UP
Vol. 76 No. 4 Pg. 256
The Alabama Lawyer
JULY, 2015

Othni J. Lathram
olathram@ali.state.al.us

For more information about the institute, visit www.ali.state.al.us.

Lee Armstrong

Cooper Shattuck

Alabama's Right of Publicity Act

Co-authored by Lee Armstrong, general counsel, Auburn University, and Cooper Shattuck, general counsel, University of Alabama System

Alabama Passes Right of Publicity Act

Samsung dresses up a robot in a blonde wig, jewelry and a flashy dress and puts her in front of the "Wheel of Fortune" game board; Ford Motor Company uses Bettte Midler's longtime backup singer as an impersonator; Mars, Inc. uses the image of an M&M dressed up as Robert Burck, the Naked Cowboy; and OutKast names a famous song "Rosa Parks"-these are all famous cases involving an individual's right of publicity. When Governor Bentley signed into law the Alabama Right of Publicity Act, Alabama joined at least 19 other states with a codified law outlining the scope and protections of the right of publicity. Alabama's new statute, and others like it, provides protection for an individual's name, image and likeness, among other attributes, from commercial exploitation without consent.

Birth of "Right of Publicity"

The right of publicity is a relatively new form of intellectual property with Second Circuit Judge Jerome Frank coining the term in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), a case in which leading baseball players sued a company over use of their images in conjunction with the sale of bubble gum. The right was further recognized by the United States Supreme Court in Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977) when Zacchini sued the broadcasting company after it aired the entire 15 seconds of his famous "human cannonball" presentation. The Court, rejecting the broadcasting company's First and Fourteenth Amendment arguments, ruled in favor of Zacchini.

Alabama's Common Law Right of Publicity

While this statute is the first of its kind in this state, Alabama has long recognized an invasion of privacy tort from the Restatement (Second) of Torts. See Bell v. Birmingham Broadcasting, Co., Inc., 266 Ala. 266, 96 So.2d (1357) (recognizing that it is unlawful to make unauthorized use of a person's name for a commercial purpose). This tort generally falls into four distinct categories: "1) the intrusion upon the plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use," with the fourth category resulting in about...