Personality rights

The right of publicity evolved out of the right of privacy in the U.S., and is still often referred to as a "subset" of privacy rights. Roughly defined, it is the right to charge for (or bar entirely) the commercial exploitation of name, likeness, voice or "personality." By some definitions, it only applies to commercial advertising. By others, it is broader, and applies to any commercial exploitation, including such things as t-shirts.

   By the broadest defintion, 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 the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.).  

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 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. To date, twenty-eight states are on record as recognizing the Right of Publicity. 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.

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). Many commentators consider the Right of Publicity to be a property right, as opposed to a personal right.

Personality rights are generally considered to consist of two types of rights: the right to 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 represent one's personality 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.

Common law jurisdictions

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.

The Henderson case [1969] RPC 218 was a decision of the High 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.

The Koala Dundee case (1988) 12 IPR 508 was a decision of the Federal Court of Australia. The applicant was a script writer and actor whose fame came from the film "Crocodile Dundee". The respondents ran two small shops which sold clothing and other items of an Australian nature. The applicant sought an injunction to restrain the respondents from using the name "Dundee" in association with a composite image "the koala image". The applicant advanced a case in passing off alleging such use was calculated to induce the public to believe the goods sold were associated with the film or the character portrayed by the applicant in it. The court granted the relief holding that the inventor of a famous fictional character having certain visual or other traits may prevent other using his character to sell goods and may assign the rights to use that character. This "extended action of passing off" protects against the wrongful appropriation of a reputation, or wrongful association of goods with an image belonging to the applicant.

In the Pacific Dunlop case (1989) 14 IPR 398, the Federal Court of Australia affirmed a decision which upheld an action in passing off. The plaintiff sued the defendants for a television advertisement which was easily recognizable as being a parody of a scene from the plaintiff's film "Crocodile Dundee". The Federal Court said the test was whether a significant section would be misled into believing that a commercial arrangement had been concluded between the defendants and the plaintiff under which the plaintiff agreed to the advertising.

England has followed this Australian development of the law. In the Mirage Studios case [1991] FSR 145, Browne-Wilkinson, V.C., after referring to the Australian cases of Children's Television Workshop v. Woolworths (NSW) Ltd. [1981] RPC 187 and Fido Dido Inc. v. Venture Stores (Retailers) 16 IPR 365, said the law as developed in Australia is sound. There is no reason why a remedy in passing off should not cover a case where the public is misled in a relevant way as to a feature or quality of the goods sold when an action is brought by the people with whom the public associate that feature or quality. An interim injunction was granted. The first plaintiff was the owner of the copyright in the drawings of fictitious humanoid characters known as "Teenage Mutant Ninja Turtles" and part of their business was to license the reproduction of these characters on goods sold by others. The first defendant made drawings of humanoid turtles characters similar in appearance to the first plaintiff's, utilizing the concept of turtles rather than the actual drawings of Turtles.

In Hong Kong, the main case on this point is the ongoing dispute between Cantopop singer/actor Andy Lau and Hang Seng Bank over the allegedly unauthorized use of Lau's image on credit cards.

Only in Jamaica in a 2002 case involving the estate of Bob Marley has it been found anywhere in a common law jurisprudence that a personality right may be transferred by disposition.

United States

In the United States, rights of publicity are enforced through state law. 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 descendible 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.

A recent example is John Dillinger's rights of publicity, as seen in Ken Phillips, Mark Phillips and Dillinger’s, Inc. v. Jeffrey G Scalf, a 2003 Indiana Court of Appeals case. The operators of Dillinger’s restaurant are alleged to have violated the right of publicity of Jeffrey G. Scalf, the great-nephew 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 March 2003, eight members of the cast of The Sopranos alleged that electronics retailer Best Buy used their images in newspaper ads without permission. In September 2002, Tom Cruise and Nicole Kidman sued luxury goods company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.

In the July 2003 case of Tiger Woods v. Jireh Publishing, however, a painting of the famous golfer Tiger Woods and others is protected by the US Constitution's First Amendment and treads neither on the golfer's trademarks or 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. The 6 May 2005 Toney v. L'Oreal and Wella opinion clarified the distinction between the purview of copyright versus the nature of publicity rights.

The 2006 New York Supreme Court case Nussenzweig v. DiCorcia determined that personality rights do not trump legitimate First-amendments rights of artistic free expression. This case is currently under appeal in the New York courts. (Note that in New York, the "Supreme Court" is a trial-level court; the court equivalent to what most states call a "Supreme Court" is the New York Court of Appeals.)

These few examples illustrate that litigation on rights of publicity in the United States is very active, rapidly changing this area of the law.

Canada

Canadian common law recognizes the right to personality on a limited basis. It was first acknowledged in the 1971 Ontario decision of Krouse v. Chrysler Canada Ltd.. 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.

Civil law jurisdictions

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.

France

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 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

In Germany personality rights are protected under the German civil code. The concepts of an "absolute person of contemporary history" which allow the depiction of individuals who are part 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 BGH 1 ZR 49/97 (1 December 1999), Translated by Raymond Youngs (Copyright: Professor Basil Markesinis, ‘Always on the Same Path’ and ‘Essays on Foreign Law and Comparative Methodology’, Hart Publishing 2001, reproduced here as fair use of a legal decision)(1):

Sec. II; para. 1. The general right of personality has been recognised in the case law of the Bundesgerichtshof since 1954 as a basic right constitutionally guaranteed by Arts 1 and 2 of the Basic Law and at the same time as an "other right" protected in civil law under § 823 (1) of the BGB (constant case law since BGHZ 13, 334, 338 - readers' letters). It guarantees as against all the world the protection of human dignity and the right to free development of the personality. Special forms of manifestation of the general right of personality are the right to one's own picture (§§ 22 ff. of the KUG) and the right to one's name (§ 12 of the BGB). They guarantee protection of the personality for the sphere regulated by them (reference omitted).

Quebec

There are certain provisions on rights in the new Civil Code of Quebec that enshrines the right to privacy as an attribute of personality. This right is set forth Article 3.

Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.

The chapter in the new Code dealing with respect of reputation and privacy defines the invasion of privacy in article 36:

The following acts, in particular, may be considered as invasions of the privacy of a person:

(1) entering or taking anything in his dwelling;

(2) intentionally intercepting or using his private communications;

(3) appropriating or using his image or voice while he is in private premises;

(4) keeping his private life under observation by any means;

(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;

(6) using his correspondence, manuscripts or other personal documents.

People's Republic of China

In the People's Republic of China, rights of personality are established by statute.

See also

• Celebrities Rights Act
• The Roger Richman Agency
• Moral rights

External links

• Links to right of publicity statutes in effect in every U.S. state
• Legal resource for personality rights cases in the U.S.
• US constitutional constraints on state right of publicity laws by Jerry Marr
• Privacy and Personality, Politicians and Stars by Rohan Massey and Kathrin Tauber, UK/Germany comparative analysis of privacy and personality rights
• Case of Princess Caroline of Monaco (1995) German Federal Supreme Court (English translation)
• Privacy rights cases under French law (English translation)
• Privacy/personality rights under German law (English translation)
• Personality rights US Library of Congress
• Das Recht am eigenen Bild, speech by G. Hug at a symposium in 2002 in Vitznau in Switzerland on personality rights in Switzerland regarding the publication of images of people. (In German.)
• summary of Canadian personality cases
• Personality Rights Database - Personality rights in Argentina, Australia, Canada, France, Germany, Mexico, South Africa, Spain, UK and USA
• Douglas v Hello! - An OK! result, Gillian Black (University of Edinburgh), SCRIPT-ed, June 2007