Personality rights

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The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

Classification[edit]

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny). If an individual violates this right they will have to through a lawsuit.[clarification needed]

Civil law and common law jurisdictions[edit]

Legal systems of the world: civil law in blue, common law in red.

In contrast with common law jurisdictions, most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate an ordinary citizen's privacy to speak about their medical records, one is generally allowed to report on more intimate details in the lives of celebrities and politicians.

Unlike most common law jurisdictions the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmirched by such publication.

  Common law
  Mixed systems using elements of common law
  Civil, customary and/or religious law (see map above)

Personality rights have developed out of common law concepts of property, trespass and intentional tort. Thus personality rights are, generally speaking, judge-made law, though there are jurisdictions where some aspects of personality rights are statutory. In some jurisdictions, publicity rights and privacy rights are not clearly distinguished, and the term publicity right is generally used. In a publicity rights case the issue to decide is whether a significant section of the public would be misled into believing (incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products. This is done by way of the tort of passing off.

The meaning of the law is best illustrated by principal cases on the subject.

Country specific jurisdictions[edit]

Australia[edit]

The Henderson case[1] was a decision of the Supreme Court of New South Wales (both the first instance and appellate jurisdiction). The plaintiffs were ballroom dancers and they sued the defendant in passing off alleging it wrongfully published their photograph on the cover of a gramophone record entitled "Strictly for Dancing: Vol. 1". An injunction was granted on the ground that the use suggested the plaintiffs recommended or approved of the defendant's goods, or had some connection with the goods.

However, in the 1988 case of Honey v Australian Airlines,[2] Gary Honey, a well known Australian athlete failed in his attempt to get a damages award after Australian Airlines used a photograph of him in action on a poster without his permission. The judge held, in essence, that the poster depicted excellence in general rather than a particular person.

Canada[edit]

Statutory protection[edit]

The provinces of British Columbia, Manitoba, Newfoundland and Labrador and Saskatchewan have enacted privacy legislation dealing with personality rights, which have the following traits:[3]

  1. An appropriation of personality can be achieved through the use of a person’s name, likeness, or voice (but British Columbia has a more restrictive definition).
  2. The plaintiff must be identified or identifiable by the use made of his persona.
  3. An action for the appropriation of personality can only succeed where the defendant intended to commit the wrong (but British Columbia has no "intention" requirement).
  4. The defendant’s use of the plaintiff’s persona must have resulted in a gain or advantage for the defendant (but British Columbia has a more restrictive definition, relating only to commercial gain).
  5. An appropriation of personality is actionable without proof of damages.
  6. The right of action for appropriation of personality is extinguished upon the death of the person whose privacy was violated.
  7. The following constitute statutory defences in all four provinces: (i) that the plaintiff consented to the use of his persona; (ii) that the use of the plaintiff’s persona was incidental to the exercise of a lawful right of defence of person or property; (iii) that the use was authorized or required under a provincial law or by a court, or any process of a court; and (iv) that the act was that of a peace officer acting in the course of his or her duties. The Manitoba Act provides additional defences.

Common law provinces[edit]

Canadian common law recognizes a limited right to personality. It was first acknowledged in the 1971 Ontario decision of Krouse v. Chrysler Canada Ltd., where the Court held that where a person has marketable value in their likeness and it has been used in a manner that suggests an endorsement of a product then there is grounds for an action in appropriation of personality. This right was later expanded upon in Athans v. Canadian Adventure Camps (1977) where the Court held that the personality right included both image and name.

In Gould Estate v. Stoddart Publishing Co. Ltd. (1998), the Ontario Court of Appeal concluded that simply writing about somebody, even for the purpose of generating a profit, does not constitute appropriation of personality.

The general tort of appropriation of personality is still in development, but it is currently being argued that it will be recognized in all common law provinces,[4] with certain characteristics:[5]

  1. Athans confirms that there is "a proprietary right in the exclusive marketing for gain of his personality, image and name..."
  2. There is always a requirement that the plaintiff be identifiable.
  3. An action for appropriation of personality will have to be intentional for a plaintiff to recover at common law.
  4. There is a requirement that the defendant must have acted for the purpose of commercial gain, but Gould suggests that this may be restricted to "endorsement-type situations".
  5. It is a matter of uncertainty whether the common law tort of appropriation of personality is actionable per se or whether damages must be shown.
  6. Privacy rights are extinguished upon death, but personality rights are inheritable.
  7. A defendant will not be liable for an appropriation of personality at common law where: (i) he has consented to the use of his persona; (ii) the use made of his personality rights was merely incidental to another purpose; or (iii) the publication constituted a matter of public interest.

Quebec[edit]

In 1994, the new Civil Code of Quebec introduced new provisions that enshrine the right to privacy as an attribute of personality:[6]

In Aubry v Éditions Vice-Versa Inc, the Supreme Court of Canada also affirmed that under Quebec's Charter of Human Rights and Freedoms privacy provisions, a photographer can take photographs in public places but may not publish the picture unless permission has been obtained from the subject, except where the subject appears in an incidental manner, or whose professional success depends on public opinion.[7] The relevant provisions of the Charter are:

Therefore, the following general characteristics may be drawn:[8]

  1. An appropriation of personality can be realized through the use of a person’s name, likeness, or voice.
  2. The plaintiff must be recognizable in order an appropriation of personality to be actionable.
  3. There is no need for the courts to look for an element of intent.
  4. Distinctions based on commercial purposes are irrelevant, and inconsistent with s 9.1 of the Quebec Charter.
  5. The plaintiff is required to show that she suffered damage through the appropriation of her personality rights.
  6. Quebec law may allow an action to be taken by the estate of a deceased person, provided that it can be proved that there is a patrimonial aspect at stake.
  7. A defendant will not be liable for an appropriation of personality under Quebec law where: (i) the plaintiff expressly or impliedly consented to the appropriation of his personality; (ii) the use of the individual’s persona is incidental to another purpose; (iii) the appropriation of personality is authorized by law; or (iv) the publication is a matter of public interest.

Cyprus[edit]

In Cyprus, people depicted in photographs can oppose their use in advertisements and their publication in magazines, even if it was taken in a public place.[9]

Denmark[edit]

In Denmark, the Danish Penal Code chapters 26 and 27, provides certain personality rights. The governmental Danish Data Protection Agency, has made a declaration regarding publication on the Internet of pictures taken of persons in a public area:[10]

The predominant point of reference, is that any publication of a portrait photograph requires consent [of the person depicted]. The reasoning for this, is that such a publication might provide the depicted person with discomfort, possibly with other information such as name, of the publication for all with access to the internet, and the considerations of this discomfort is judged as more important than a possible interest in publication.

A portrait photograph is defined as a photograph, with the purpose of depicting one or more specific person(s). The personality rights however may be contracted for persons who are generally accepted as public persons.

France[edit]

In France personality rights are protected under article 9 of the French civil code. While publicly known facts and images of public figures are not generally protected, use of someone's image or personal history has been held actionable under French law. The most famous case in recent history is perhaps the publication of the book on François Mitterrand called Le Grand Secret[11] in which Mitterrand's doctor published a book that not only revealed private facts about Mr. Mitterrand's life, but also revealed medical confidences protected by doctor–patient privilege.

Germany[edit]

In Germany personality rights are protected under the German civil code, where the concept of an "absolute person of contemporary history" allows the depiction of individuals who are part of history but still gives them some protection of their rights of privacy outside the public sphere. A succinct statement of the German law can be found in the following judicial statement from the Marlene Dietrich case:

Greece[edit]

The relevant Greek laws include 57 AK and 2472/1997. As regarding photography:

  • Taking a picture of a person in a public space: Requires consent. Taking a photo or video of someone or drawing them in a painting constitutes an illegal act by itself according to Article 57 of the Greek Civil Code (57 ΑΚ, 57 Αστικός Κώδικας) even without any publication of the resulting photo, video or drawing. The law assumes that consent has been provided silently if the depicted person has been paid for the photography session. The law also provides some exceptions for persons of contemporary history.[13] Furthermore, the law 2472/1997 also applies in many circumstances, even in photographing political rallies in public places or in photographing the police; Greece also requires photographers to obtain a government permit before photographing people participating in political protests in public places.[14]
  • Publishing pictures of a person in a public space: Requires consent.[13] The publication of photographs of identifiable police officers beating civilians in public places may be against the law 2472/1997 and as such these images should be turned to the authorities for review.[14]
  • Commercial use of a published picture of a person in a public space: Requires consent.[13]

Guernsey[edit]

The relevant Guernsey law was enacted on 3 December 2012 under the name of Image Rights Bailiwick of Guernsey Ordinance 2012 and allows for the registration of a personality right, together with images associated with that personality. Images are widely defined and can be any number of personal attributes, such as likeness, mannerisms, gestures, voice, nickname etc.

Personalities able to register fall into 5 categories, namely sole, joint, group, legal and fictional character. In addition, humans can be registered up to 100 years after the date of death, making the law very favourable for estate managers and trustees.

Hong Kong[edit]

In Hong Kong, the main case on this point relates to Cantopop singer/actor Andy Lau and Hang Seng Bank over the allegedly unauthorized use of Lau's image on credit cards,[15] which has led to the observation that only limited personality rights exist in this jurisdiction.[16]

Jamaica[edit]

In a 1994 case involving the estate of Bob Marley, the Supreme Court of Jamaica acknowledged a property right of personality which survived his death.[17]

Korea[edit]

While personality rights are said to exist to some extent by a Korean attorney,[18] cases filed to enforce such rights against shopping malls have been unsuccessful. [19] [20]

People's Republic of China[edit]

In the People's Republic of China, rights of personality are established by statute. According to article 99 and 100 of the General Principle of Civil Law of the People's Republic of China, the right of name and the right of image are protected. It is prohibited to use another's image for commercial use without that person's consent. In the new[when?] Tort Liabilities Law, the right of privacy is mentioned for the first time in the legislation.

South Africa[edit]

In South Africa personality rights are protected under the South African law of delict and the Bill of Rights, which also provides for freedom of expression and freedom of association.[21] After much uncertainty concerning the recognition of image rights in South Africa, the Supreme Court of Appeal provided clarity in the landmark case of Grütter v Lombard.[22][23] In South Africa, a person's right to identity is violated if the attributes of that person is used without permission in a way which cannot be reconciled with the true image of that person.[24] Apart from the unauthorized use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves or endorses a particular product or service or that an attorney is a partner in a firm, while this is not the case. Secondly, the right to identity is violated if the attributes of a person is used without authorization by another person for commercial gain.[25][26] Apart from the unauthorized use of the individual's image, such use also primarily entails a commercial motive which is exclusively aimed at promoting a service or product or to solicit clients or customers. The mere fact that the user may benefit or profit from any product or service in respect of which the individual's attributes have incidentally been used, is not in itself sufficient. This violation of the right to identity therefore also entails unauthorized use of the individual's attributes with a commercial purpose, whether it is done by means of advertisement or the manufacture and distribution of merchandise covered with the attributes of the individual. Personality rights are not absolute and it goes without saying that the use of a person's attributes must be unlawful before a plaintiff will succeed with any claim. With the use of a person's image, the personality rights, privacy, human dignity and freedom of association of the individual must often be weighed against the user's right to freedom of expression. The use of a person’s image can be justified on the grounds of consent, truth and public interest, fair comment and jest.[27]

Spain[edit]

According to the agency (Spanish) Data Protection for the collection and dissemination on Internet of images of a person without their consent may be a serious breach of the Data Protection Act which would be punishable by a minimum fine of 60,000 euros. According to El Mundo Data Protection Agency decided to investigate ex officio by the mere distribution of the image of a person on the Internet without their consent.[28]

United States[edit]

In the United States, the right of publicity is a state law-based right, as opposed to federal, and recognition of the right can vary from state to state.[29] The rationale underlying the right of publicity in the United States is rooted in both privacy and economic exploitation.[30] The rights are based in tort law, and the four causes of action are: 1) Intrusion upon physical solitude; 2) public disclosure of private facts; 3) depiction in a false light; and 4) appropriation of name and likeness. Typically, but by no means exclusively, the right of publicity is manifest in advertising or merchandise. In states without a specific right of publicity statute, the right of publicity may still be recognized via common law. The right of publicity has evolved rapidly, with a history of reported cases in the United States and worldwide.[31]

By the broadest definition, the right of publicity is the right of every individual to control any commercial use of his or her name, image, likeness, or some other identifying aspect of identity, limited (under U.S. law) by the First Amendment. The right of publicity can be referred to as publicity rights or even personality rights. The term "right of publicity" was coined by Judge Jerome Frank in 1953.[32]

The extent of recognition of this right in the U.S. is largely driven by statute or case law. Because the right of publicity is primarily governed by state (as opposed to federal) law, the degree of recognition of the right of publicity varies significantly from one state to the next. The Lanham Act governs federal protection of personality rights, and the doctrine has much in common with the laws defining federal protection of trademarks.[33] In fact, an individual’s identity could be considered their personal “mark”, the misappropriation of which is sufficient to constitute infringement. In addition, both trademark and publicity rights appear to be designed somewhat to combat infringement for the sake of consumers, granting a cause of action for false descriptions, false representations, and false endorsement claims. Just as there is a cause of action for implying a certain brand sponsors a product when it really does not, there is a cause an action if a celebrity’s identity is used to imply endorsement for a product they are not, in actuality, affiliated with. Courts will typically consider eight factors when weighing a false endorsement claim, in order to determine the likelihood of consumer confusion:

  1. the strength of his mark.
  2. the degree of similarity between the two marks.
  3. the proximity of the products/services.
  4. the likelihood that the prior owner will bridge the gap.
  5. actual confusion.
  6. the defendant's good faith in adopting its own mark.
  7. the quality of the defendant's product.
  8. the sophistication of the buyers.

These eight factors have their origins in the case Polaroid Corp. v. Polarad Elect. Corp.,[34] but are similarly used by courts to analyze false endorsement claims by celebrities.[35]

Indiana is believed to have the most far-reaching right of publicity statutes in the world, providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms. There are other notable characteristics of the Indiana law, though most of the major movement in right of publicity emanates from New York and California, with a significant body of case law which suggest two potentially contradictory positions with respect to recognition of the right of publicity.

Some states recognize the right through statute and some others through common law. California has both statutory and common-law strains of authority protecting slightly different forms of the right. The right of publicity is a property right, rather than a tort, and so the right may be transferable to the person's heirs after their death. The Celebrities Rights Act was passed in California in 1985 and it extended the personality rights for a celebrity to 70 years after their death. Previously, the 1979 Lugosi v. Universal Pictures decision by the California Supreme Court held that Bela Lugosi's personality rights could not pass to his heirs.[36][37]

  • In 1977, in the case of Zacchini v. Scripps-Howard Broadcasting Co., the U.S. Supreme Court held that the First Amendment did not immunize a television station from liability for broadcasting Hugo Zacchini's human cannonball act without his consent. This was the first, and so far the only, U.S. Supreme Court ruling on rights of publicity.[citation needed]
  • In September 2002, Tom Cruise and Nicole Kidman sued luxury cosmetics company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.[38]
  • In October 1990, actor Crispin Glover filed a lawsut against Universal Studios for both the unauthorized use of his likeness and the use of footage of him from the first film in Back to the Future Part II; his permission had not been sought for the latter and he received no payment. After a motion to dismiss was overruled, the case was settled for an undisclosed amount. The Screen Actors Guild changed its rules to prohibit its members from unauthorized mimicking of other SAG members.
  • A recent example is John Dillinger's rights of publicity, as seen in Phillips v. Scalf, a 2003 Indiana Court of Appeals case.[39] The operators of Dillinger’s restaurant are alleged to have violated the right of publicity of Jeffrey G. Scalf, the grandnephew of the 1930s gangster and bank robber John Dillinger, in using without authorization Dillinger’s name, image, and likeness in connection with the restaurant. In a later case, a U.S. district court ruled in 2011 that Indiana's publicity rights statute did not protect people who died before the law's enactment in 1994.[40]
  • In March 2003, eight members of the cast of The Sopranos alleged that electronics retailer Best Buy used their images in newspaper ads without permission.[41]
  • In the July 2003 case of ETW Corp. v. Jireh Publishing, however, a painting of the golfer Tiger Woods and others is protected by the US Constitution's First Amendment and treads neither on the golfer's trademarks nor publicity rights. Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit. In May 2005, Toney v. Oreal USA Inc. clarified the distinction between the purview of copyright versus the nature of publicity rights.[42]
  • The 2006 New York County Supreme Court case Nussenzweig v. DiCorcia determined that personality rights do not trump legitimate First Amendment rights of artistic free expression.[43][a] In March 2007, the decision was upheld by the New York Supreme Court, Appellate Division, and in November 2007, the New York Court of Appeals upheld all previous decisions based, in part, on "artistic expression".[44]
  • In 2008, a federal judge in California ruled that Marilyn Monroe's rights of publicity were not protectable in California. The court reasoned that since Monroe was domiciled in New York at the time of her death, and New York does not protect a celebrity's deceased rights of publicity, her rights of publicity ended upon her death.[45]
  • In the 2009 case of James "Jim" Brown v. Electronic Arts, Inc., the District Court of the Central District of California dismissed athlete Jim Brown's theory of false endorsement under the Lanham Act and determined that the First Amendment protects the unauthorized use of a trademark in an artistic work when the mark has artistic relevance to the work and does not explicitly mislead as to the source or content of the work. Applying this test, the court found a lack of implied endorsement and held that the First Amendment protected Electronic Arts in its use of a virtual football player that resembled Mr. Brown.[46]

U.S. states that recognize rights of publicity[edit]

See also[edit]

Notes[edit]

  1. ^ In New York, the "Supreme Court" is a trial-level court, equivalent to what is called "Superior Court" in other states. The court equivalent to what most states call a "Supreme Court" is the New York Court of Appeals.

References[edit]

  1. ^ Henderson v Radio Corp Pty Ltd, (1960) 60 SR(NSW) 576, [1969] RPC 218
  2. ^ Re Gary Honey v Australian Airlines Limited and House of Tabor Inc [1989] FCA 177 (18 May 1989)
  3. ^ Conroy 2012, pp. 4–7.
  4. ^ Conroy 2012, p. 10.
  5. ^ Conroy 2012, pp. 11–14.
  6. ^ Art. 3 CCQ, Art. 36 CCQ
  7. ^ Aubry v Éditions Vice-Versa Inc 1998 CanLII 817 at par. 55–59, [1998] 1 SCR 591 (9 April 1998)
  8. ^ Conroy 2012, pp. 15–17.
  9. ^ Γραφείο Επιτρόπου Προστασίας Δεδομένων Προσωπικού Χαρακτήρα - Αποφάσεις (in Greek). Dataprotection.gov.cy. Retrieved 2014-04-19. 
  10. ^ Datatilsynet: Billeder på internettet (in Danish)
  11. ^ Gubler, Claude (2005). Le Grand Secret (in French). Éditions du Rocher. ISBN 978-2-26805384-4. 
  12. ^ Marlene Dietrich Case, BGH 1 ZR 49/97 (1 December 1999).
  13. ^ a b c http://greeklaws.com/pubs/uploads/2795.pdf
  14. ^ a b e-Lawyer. "E-Lawyer: Λήψη φωτογραφιών σε δημόσιες συναθροίσεις παρουσία αστυνομίας". Elawyer.blogspot.gr. Retrieved 2014-04-19. 
  15. ^ Lau Tak Wah Andy v. Hang Seng Bank Limited, HCA 3968/1999 (29 April 1999); judgment text also available from HKLII
  16. ^ Peter K. Yu (2010). "No Personality Rights for Pop Stars in Hong Kong?". Drake University Law School Research Paper (12-04). Drake University Law School. SSRN 1672311Freely accessible. 
  17. ^ Robert Marley Foundation v Dino Michelle Ltd (1994), Supreme Court of Jamaica, No. CL R-115 of 1992 (unreported), noted in B. St. Michael Hylton; Peter Goldson (1996). "The New Tort of Appropriation of Personality: Protecting Bob Marley's Face". Cambridge Law Journal. Cambridge University Press. 55 (1): 56–64. doi:10.1017/s0008197300097737. JSTOR 4508169. 
  18. ^ http://klawguru.com/2014/02/21/personality-rights-under-korean-law/
  19. ^ http://www.kdramastars.com/articles/14310/20140115/personality-rights-song-seung-hun-wins-but-jang-dong-gun-loses-litigation-why.htm
  20. ^ http://www.ohkpop.com/208495/can-korean-stars-have-celebritys-personality-rights
  21. ^ Burchell, Jonathan (March 2009). "The Legal Protection of Privacy in South Africa: A Transplantable Hybrid" (PDF). Electronic Journal of Comparative Law. Archived (PDF) from the original on 7 December 2013. Retrieved 30 May 2014. 
  22. ^ 2007 4 SA 89 (SCA).
  23. ^ Cornelius, Steve. "Image Rights in South Africa" 2008/3-4 International Sports Law Journal 71.
  24. ^ O'Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C).
  25. ^ Wells v Atoll Media (Pty) Ltd and another (11961/2006) (2009) ZAWCHC 173.
  26. ^ Kumalo v Cycle Lab (Pty) Ltd (31871/2008) (2011) ZAGPJHC 56.
  27. ^ Cornelius, Steve. "Commercial Appropriation of a Person's Image" 2011 Potchefstroom Electronic Law Journal 182.
  28. ^ Article by Paloma Días Sotero, El Mundo, p. 33, February 5, 2009.
  29. ^ "Statutes". rightofpublicity.com. 
  30. ^ Beebe, Barton; Cotter, Thomas; Lemley, Mark; Menell, Peter; Merges, Robert (2011). Trademarks, Unfair Competition, and Business Torts. Aspen Publishers. ISBN 978-0-73558877-6. 
  31. ^ "Right of publicity informational resource website". 
  32. ^ Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).
  33. ^ 15 U.S.C. § 1125
  34. ^ Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961).
  35. ^ As seen in cases such as Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). or ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003).
  36. ^ "Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979).". FindLaw. Retrieved 2007-02-14. In this decision preceding (and precipitating) the Legislature's enactment of Section 990, the California Supreme Court held that rights of publicity were not descendible in California. Bela Lugosi's heirs, Hope Linninger Lugosi and Bela George Lugosi, sued to enjoin and recover profits from Universal Pictures for licensing Lugosi's name and image on merchandise reprising Lugosi's title role in the 1930 film, "Dracula." The California Supreme Court faced the question whether Bela Lugosi's film contracts with Universal included a grant of merchandising rights in his portrayal of Count Dracula, and the descendibility of any such rights. Adopting the opinion of Justice Roth for the Court of Appeal, Second Appellate District, the court held that the right to exploit one's name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime. Lugosi, 603 P.2d at 431. 
  37. ^ "Who Can Inherit Fame?". Time (magazine). July 7, 1980. Retrieved 2007-07-21. Ten years later, the son and the widow of Bela Lugosi, star of the Dracula films, tried to take this doctrine a step further. They argued that this right was essentially property and therefore should pass on to heirs. In a California suit, they asked the courts to stop Universal Pictures from merchandising 70 Dracula products, ranging from jigsaw puzzles to belt buckles, and sought compensation based on the profits. Citing the First Amendment, Universal replied that the design of merchandise is a form of free speech that should not be restrained by anyone's heirs. Besides, said Universal's lawyer, Robert Wilson, Lugosi "attained fame and fortune because the company made and distributed the movies he starred in." After eleven years of wrangling, a trial judge decided in favor of the Lugosis, giving them $70,000 and barring Universal from merchandising Lugosi's likeness. ... In December the California Supreme Court reversed the Lugosi decision. 
  38. ^ "Cruise and Kidman sue over ad". BBC News. September 20, 2002. Retrieved June 19, 2012. Cruise and Kidman claim the unauthorised use of their image for the advert had made them ‘involuntary models without pay’. [...] They are seeking damages for violation of the Lanham Act, a US law designed to protect against trademark infringement and unfair competition such as false advertising. 
  39. ^ Phillips v. Scalf, 778 N.E.2d 480 (Ind. App. 2002).
  40. ^ Dillinger LLC v. Electronic Arts Inc., 795 F.Supp.2d 829 (S.D. Ind. 2011) (“... the Court finds that the Indiana Supreme Court would agree with Shaw: Indiana’s right-of-publicity statute doesn’t apply to personalities who died before its enactment.”).
  41. ^ Bates, James (February 4, 2003). "'Sopranos' Take Shot at Ad in Court". Los Angeles Times. Retrieved June 19, 2012. 
  42. ^ Toney v. Oreal USA Inc., 406 F.3d 905 (7th Cir. 2005).
  43. ^ Nussenzweig v. DiCorcia, 2006 NY Slip Op 50171(U) (N.Y.Sup. 2006).
  44. ^ Nussenzweig v. diCorcia, 2007 NY Int. 144 (N.Y. 2007).
  45. ^ "The New Grave Robbers". New York Times. March 27, 2011. Retrieved 2011-03-28. In a case involving Marilyn Monroe, the California Legislature even created a retroactive right of publicity, establishing new private property interests in the identities of the long dead. (It didn’t work, because a court later found that Monroe was a resident of New York when she died. Her identity remains in the public domain.) 
  46. ^ "James "Jim" Brown v. Electronic Arts, Inc. Court decision" (PDF). 
  47. ^ a b c d e f g h i j k l m n o p q r s t u v w x y Carpenter, Jennifer L. (2001). "Internet Publication: The Case for an Expanded Right of Publicity for Non-Celebrities". Virginia Journal of Law and Technology. 6 (1): 1522–1687. 
  48. ^ "Friedemann O'Brien Goldberg & Zarian Names Bela G. Lugosi Of Counsel". Metropolitan News-Enterprise. Retrieved 2008-04-20. [T]he California Assembly passed a “Celebrities Rights Act” in 1985 which said that rights of publicity survive the celebrity’s death and descend to heirs by wills, among other means. 
  49. ^ "Florida Laws: FL Statutes - Title XXXIII Regulation of Trade, Commerce, Investments, and Solicitations Section 540.08 Unauthorized publication of name or likeness". Law.onecle.com. 
  50. ^ Hawaii Revised Statute § 482P
  51. ^ Baker v. Burlington N., Inc., 587 P.2d 829, 832 (Idaho 1978)
  52. ^ See 765 ILCS 1075, the Illinois Right of Publicity Act, eff. 1-1-1999. 765 ILCS 1065 " Illinois Compiled Statutes"
  53. ^ "Indiana Code 32-36-1". In.gov. Retrieved 2014-04-19. 
  54. ^ N.Y. Civil Rights L. §§ 50, 51. Found at Ny State Assembly website statutes pages. Accessed June 20, 2011.
  55. ^ "Washington Statute 63.60. Personality Rights". Rightofpublicity.com. 1998-01-01. Retrieved 2014-04-19. 
  56. ^ "Wisconsin WI ST 895.50, W.S.A. 895.50 " Right of privacy"". Rightofpublicity.com. Retrieved 2014-04-19. 

Works cited[edit]

Further reading[edit]

External links[edit]

  1. ^ Evans, David; Romer, Jason (2013-10-01). "A Guide to Guernsey image rights". Journal of Intellectual Property Law & Practice. 8 (10): 761–763. doi:10.1093/jiplp/jpt153. ISSN 1747-1532. 
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