right of publicity update
TRANSCRIPT
Right of Publicity
Joel E. TragesserQuarles & Brady LLP
(317) [email protected]
Jonathan FaberLuminary Group LLC
(317) [email protected]
What are rights of publicity?• Right to control and profit from commercial use of your name, likeness, persona, etc.
• State-by-state
• Statutory and common law
• Postmortem publicity rights
• See also: Right of privacy
What are rights of publicity?In what do you have a publicity right?
Name, voice,
signature, photograph,
image, likeness,
distinctive appearance, gestures,
and mannerisms.
Ind. Code § 32-36-1-6.
State legislatures
Indiana2012
Amendment to Right of Publicity Act clarifies that
postmortem right of publicity applies to those
who predeceased enactment of the statute.
AlabamaAugust 2015
Protects deceased persons who at any time resided in,
died in, or whose estate was probated in Alabama.
Provides a 55-year postmortem right of
publicity to every qualifying person.
New YorkRevived in 2016
In 2015, did not enact bill that would have provided a 70-year
postmortem right of publicity.
State legislatures
Minnesota2016
PRINCE Act (Personal Rights In Names Can Endure) introduced in April 2016, but was pulled in May.
The day after Prince's death, Chevrolet ran an advertisement in The New York
Times and other publications.
Right of Publicity Issues Are Everywhere
See also the Robin Williams approach to estate planning: a 20-year moratorium on use of name and likeness
Michael JacksonContinuing likeness revenue after death—and heading to U.S. Tax Court in February
Rosa ParksUsing the right to restrict use of her likeness
Right of Publicity Issues Are Everywhere
Lawsuits – Privacy / Damages
Lawsuits – First Amendment defenses
Avoiding Right of Publicity Claims
Lawsuits – Advertising
Jordan v. Jewel Food Stores
(7th Circuit, Illinois state law)
• Where’s the likeness?
• Attempts at generating goodwill for your brand can count as “commercial use.”
• Settled for an undisclosed amount along with another similar case (in which a jury had initially awarded Jordan $8.9 million).
Lawsuits - Advertising
Lawsuits – Name and
LikenessSettlement in Deney Terio vs. Hasbro
(M.D. Fla. 2016)
•Hasbro's cartoon character Vincent Terrio sold as a figurine in McDonald's Happy Meals. (Hasbro also owns trademark for "Vinnie Terrio.")
•Saturday Night Fever choreographer and Dance Fever host Denis George Mahan, aka Deney Terio.
Lawsuits – College Athletes Right of publicity for
realistic representations in videogamesHart v. EA (3d Cir.) and Keller v. EA (9th Cir.) both held: “Realistic” depictions of the athletes in videogames don’t count as transformative use; videogame makers don’t have First Amendment protection. The dissent in Keller: The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.
The dissenting judge’s statement makes an unsupportable leap. Most right of publicity statutes have specific exemptions for these kinds of creative works.
Lawsuits – College Athletes
Antitrust: Restraining licensing of name and likenessNCAA v. O’Bannon
SCOTUS: On October 3, the Court denied both sides' petitions for certiorari. Although this denial leaves in place the ruling that the NCAA's amateurism rules violate antitrust law, the denial also leaves unanswered:
NCAA: Whether First Amendment defenses defeat right of publicity claims for "realistic portrayals" in college sports videogames.
Student-athletes: Whether it was proper for the Ninth Circuit to overturn the district court's optional payment system of $5000 per year.
What's next? NCAA is vulnerable to more legal challenges ahead:•The Jenkins and Alston cases challenge NCAA's power to cap compensation for athletes.
Lawsuits – College Athletes
See also: Marshall v. ESPN (6th Cir. 2016): Participants in sporting events don't have publicity rights under Tennessee’s statute (which expressly permits use of name/likeness in a sports broadcast).
Keller and O'Bannon fallout:Settlement: $40 million by EA and Collegiate Licensing upon departing the consolidated Keller and O'Bannon cases.
Attorneys’ fees: (pending) $20 million to attorneys who represented the student-athlete plaintiffs.
Scholarships: NCAA now give schools option to increase student-athletes' aid to match a federal "cost of attendance" amount.
Lawsuits – College Athletes
Pending lawsuit: Fantasy sports Daniels v. FanDuel (S.D. Ind. 2016)
•Former college athletes: Fantasy sports sites cannot rely on First Amendment defenses because they used players' likenesses for "illegal gambling activity."
•FanDuel and DraftKings: (1) Fantasy sports were never illegal in Indiana, and (2) using "facts" about players is protected by newsworthiness exception.
•Meanwhile: The sites voluntarily suspended their college sports contests after receiving pressure from the NCAA during March Madness in 2016.
Lawsuits – Pro Athletes
Fantasy sports Pierre Garcon v. FanDuel
(D.Md. 2015)•Maryland doesn't have publicity rights statute.
•MLB lost 8th Circuit case against a fantasy sports company in 2007, when court said First Amendment protected company's use of names and statistics.
•Ask: Where's the difference between actionable "likeness" and mere use of name and statistics? What about photos alongside stats? Or players' names in ads?
•Garcon had previously tweeted ads for FanDuel; does that matter?
•Importance of licensing deals, even if they might not be legally necessary.
Lawsuits – Professional Athletes
Fred Dryer
Retired players in Madden NFL videogames
Davis v. Electronic Arts, Inc.
•EA Sports loses: Ninth Circuit, citing Keller, affirmed district court holding against EA, reasoning that likenesses in the "historical games" of Madden NFL were no more transformed than in NCAA Football.•And loses again: In March, SCOTUS denied certiorari when EA asked Court to review whether company had First Amendment right to use likenesses. •Defendants now face uncertain litigation with state-law right of publicity claims.
Lawsuits – Professional Athletes
Differing resultsCompare Dryer to Davis and student-athletes
• Supreme Court denied cert in Davis and in O'Bannon, so we still don't have the Court's clarification on First Amendment defenses.
• “Accurate depictions” are necessary to the products' appeal. That realism protected NFL Films when depicting pro players, but it doomed EA Sports using athletes in videogames.
• “The inevitable effect of these rulings is to suggest that producers of creative media who depict people more 'literally' and accurately are more likely to be penalized, while those who 'creatively' change or fictionalize their subjects’ lives, personas or historical context will be on safer ground.” - Amicus brief filed in Davis by Washington Post, Los Angeles Times, NPR
Some analysts say:
“[Lower courts] appear to be slowing the recent expansion of state law right of publicity liability by finding plaintiffs’ claims barred for a variety of other reasons,” says attorney involved.
Inaccurate.
• Comedy Central's parent, Viacom, sent a cease and desist letter to The Late Show with Stephen Colbert.
• Work-made-for-hire ownership over a performer's exaggerated persona?
New uses for right of publicity?
The frontier of "right of publicity"?
Protection through trademark
Advising clients: Takeaways
Advising clients: ResourcesOnline Right of Publicity resource:www.RightOfPublicity.com
International Trademark Association (INTA)www.INTA.org
Licensing Industry Merchandiser’s Association (LIMA)www.licensing.org
Trademark blog:http://thettablog.blogspot.com/
Lawsuits – College Athletes Antitrust: Restraining licensing of name and likeness
Keller v. EA and O’Bannon v. NCAA (consolidated into In re NCAA Student-Athlete Name & Likeness Litigation)
N.D. Calif. 2014: •Restraining amateur athletes from licensing their names and likenesses in telecasts and videogames violates antitrust laws.•NCAA cannot prohibit member schools from giving student-athletes scholarships to cover the full cost of attendance (i.e., beyond just the cost of tuition). •Did not specifically address right of publicity.
9th Cir. 2015: •Upheld lower court’s ruling that NCAA rules restricting payment to college athletes violates antitrust laws.•Overturned district court's ruling that colleges could pay players up to $5,000 per year in deferred compensation for use of their names, images, and likenesses.•Explicitly states that right of publicity is beside the point.
Ed O’Bannon in 1995 and in EA Sports’ NCAA Basketball