For this month's Westlaw column, I'm focusing on how the right of publicity is defined, argued and where it's headed. Attorney Mark Lee has been closely involved in right of publicity matters in recent years, both in and out of courtrooms all the way to the United States Supreme Court as a litigator, author, lecturer and consultant for states looking to define their laws. Lee, partner at Manatt Phelps and Phillips, LLP in Los Angeles, has a client list that includes Tiger Woods, Barbra Streisand and the estate of Elvis Presley.
He's also the author of Entertainment and Intellectual Property Law , published by West.
"The right of publicity is probably the newest form of intellectual property recognized in the United States," says Lee. "I also think it's the most intuitive. It basically allows each of us to control how our names and likenesses are commercially exploited by others."
Exploitation comes easy in our 24/7 news and information cycle of broadcast media and Web coverage of people and businesses. New media and the Internet are continually straining traditional legal standards.
"What I've seen develop over the past 10-15 years is an increasing tension between rights holders and third parties who want to use the rights without permission," says Lee. "These days, it seems that every right of publicity claim I deal with involves a First Amendment defense. Of course, the First Amendment is real and important. But what tends to happen is we end up with some kind of hybrid in which a marginally expressive item, such as a medal, t-shirt, greeting card, or Web site is also largely a commercial product or service. Is the use of an image speech, or is it commerce?That can create very difficult legal issues."
Since there are no federal guidelines on right of publicity, it's been up to states to define it. About 40 have right of publicity laws that protect the living. Eighteen states expressly extend those rights to the dead. New York is the only state that clearly outlaws posthumous protection.
"The fact that it is governed by state law makes it an especially complex area," says Lee. "I've called the present state law regime a crazy quilt of inconsistent laws that make it very difficult for third parties to know what they can do, and for rights holders to know what they can stop."
Lee says it's always possible for one state to have a law that prohibits something that's allowed in another state. "I think there would be a number of advantages to having good federal laws on the subject that would bring uniformity, and hence predictability, to commercial transactions," adds Lee.
So how can the companies you counsel avoid violating someone's right of publicity in terms of the use of a photo or other potential pitfall? Lee's advice is simple, yet often ignored.
"Make sure you have clearance to use what you're using," says Lee. "Permission from the copyright owner isn't enough. If there's a release form signed by a model or person depicted in the photo, make sure it covers exactly how you intend to use their name and likeness. If there isn't a release, get one or don't use the photo. You'll come out ahead in the long run."
For additional insight on the right of publicity, the following Westlaw databases are available:
Entertainment and Intellectual Property Law (ENT-IP)
The Rights of Publicity and Privacy (RTPUBPRIV)
Entertainment Law: Legal Concepts and Business Practices (ENTERTAIN)
Lindey on Entertainment, Publishing, and the Arts, 3d, (LINDEY3D)
Law of Defamation 2d. (LEDF)
Media, Advertising, & Entertainment Law Throughout the World (MEDIAWORLD)
Eckstrom's Licensing in Foreign and Domestic Operations (ECKLICN-FO)