California law provides a right of action for damages against
“[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent. …”1 Consent is not required, however, for use “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.”2 The California statute provides that the right of publicity survives for 70 years after the death of the individual concerned.3
The statute does not displace common law remedies, and common law provides broader protection.4 For example, in White v. Samsung Electronics America, Inc.,5 the court held that Vanna White’s statutory right of publicity was not infringed by a television advertisement using a robot that resembled her, because it was not a “likeness.” However, the court concluded that she could make a claim under California’s broader common law right of publicity.6 Similarly, in Waits v. Frito-Lay, Inc.,7 the court upheld a $2 million jury verdict for singer Tom Waits for the use of a sound-alike in an advertisement for Doritos chips, despite the fact that the statute does not cover imitation of another’s voice.
Illinois law protects the right of publicity, defined as “[t]he right to control and to choose whether and how to use an individual’s identity for commercial purposes . . . .”8 “Identity” embraces any attribute that identifies the individual “to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.”9
“Commercial purpose” is defined in the statute as:
[T]he public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.10
Individuals are protected regardless of whether they have used their identity for a commercial purpose. Publicity rights last for the life of the individual and 50 years thereafter.11
Michigan has no statutory right of publicity; however, it does recognize a right of publicity under common law. For example, in Carson v. Here’s Johnny Portable Toilets, Inc.,12 the Sixth Circuit Court of Appeals upheld a right of publicity claim brought by comedian Johnny Carson against a company renting “Here’s Johnny” portable toilets. The courts have also held that the right of publicity exists postmortem.13 However, use of another’s identity in a print or broadcast biography does not infringe the right of publicity.14
4. New York
New York law provides that “[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade” without written consent may sue for an injunction and damages.15
The statute allows use of the name, portrait, picture, or voice of any author, composer, or artist in connection with his literary, musical, or artistic productions which he has sold or disposed of with such name, portrait, picture, or voice used in connection therewith. It also states:
Nothing contained in this section shall be construed to prohibit the copyright owner of a sound recording from disposing of, dealing in, licensing or selling that sound recording to any party, if the right to dispose of, deal in, license or sell such sound recording has been conferred by contract or other written document by such living person or the holder of such right.16
New York’s right of publicity is grounded in privacy law. The New York courts have held that it should be strictly construed, and generally have not recognized a common law right of publicity distinct from the statutory right under sections 50 and 51 of the New York Civil Rights Law.17
Virginia law is similar to New York law, on which it was based. It provides that “[a]ny person whose name, portrait or picture is used” without written consent “for advertising purposes or for the purposes of trade” may sue for an injunction and damages.18 The right lasts for 20 years after the death of the individual.19
This is an appendix to Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives © 2008 June M. Besek, Kernochan Center for Law, Media and the Arts, Columbia Law School.
3 § 3344.1 (g). There is a news exception to the postmortem right as well. Id. § 3344.1(j). For purposes of the postmortem right, “a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.” Id. § 3344.1 (a)(2).
12 698 F.2d 831, 837 (6th Cir. 1983) (applying Michigan law). But see Romantics v. Activision Publ’g, Inc., 2008 U.S. Dist. Lexis 63281 (E.D. Mich. Aug. 19, 2008) (holding that even if Michigan’s right of publicity extended to voice imitations, plaintiffs’ claim would fail because their “sound” is not sufficiently distinctive).
14 Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723, 728-9 (E.D. Mich. 2000), aff’d, 267 F.3d 457 (6th Cir. 2001) (rejecting right of publicity claim in connection with television miniseries based on lives of members of “The Temptations”).
15 N.Y. Civ. Rights Law § 51 (2006). A companion statute provides that it is a misdemeanor to use the name, portrait, or picture of a living person without consent for advertising purposes or for the purposes of trade. Id. § 50.
17 See Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 183 (1984) (finding that because the right of publicity is statutory and therefore exclusive, plaintiff’s common law claim was preempted).
18 Va. Code Ann. § 8.01-40 (A) (West 2007). As in New York, there is a companion statute that makes it a misdemeanor to use the name, portrait, or picture of a living person without consent for advertising purposes or for the purposes of trade. Id. § 18.2-216.1.