The Right of Publicity

Hastings College of the LawNovember 19, 2008

Origins -- Privacy

• L. Brandeis & C. Warren, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). “The right to be let alone.” Addressed truthful but embarrassing disclosures by the press.

• Dean Prosser’s four “rights of privacy”: (1) intrusion into plaintiff’s private affairs; (2) public disclosure of embarrassing private facts; (3) publicity that places plaintiff in a false light; and (4) appropriation of the plaintiff’s name or likeness. William Prosser, “Privacy,” 48 Cal. L. Rev. 383 (1960).

• Fairfield v. American Photocopy, 138 Cal. App. 2d 82 (1955). Plaintiff was falsely advertised as a satisfied customer. Right to be free from unauthorized and unwarranted publicity. Has a suggestion of false endorsement.

Origins – Property Right

• Haelen Laboratories, Inc. v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953). Use of images of baseball players on chewing gum cards. Person has exclusive right in the publicity value of his photograph.

• M. Nimmer, Right of Publicity, 19 Law. and Contemp. Problems 203 (1954). Celebrities are not concerned about privacy but the right to control and profit from appropriation of their identity.

• Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). Right of publicity is an “entirely different tort” “analogous to the goals of patent and copyright law.”

Legal Theories

• Cal. Civ. Code § 3344• Cal. Civ. Code § 3344.1• Common law right of publicity/appropriation• Lanham Act § 43(a), 15 USC § 1125(a)

Cal. Civ. Code § 3344

• 3344. (a) Any 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, . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.

• (d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

Cal. Civ. Code § 3344.1

• Same as 3344, applies to a “deceased personality.”

• Enacted in reaction to Lugosi v. Universal Pictures, 25 Cal. 3d 813 (1979), where court held that right of publicity, having its roots in right of privacy, are personal rights and therefore not descendible.

Common law theories

• Common law misappropriation of right of publicity: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983).

• Unfair competition/misappropriation: appropriation of work of another that has acquired “secondary meaning”

15 USC § 1125(a) (false endorsement)

(a) Civil action (1) Any person who, on or in connection with any goods or services, . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . .

The Big Battle

Right of publicity - property• Is it like copyright?• Is it like trademark?• Is it like other recognized

forms of common law appropriation?

First Amendment• Commercial Speech• Expressive Speech• News/public figures

Arnold Schwarzenegger Loves Spillane CigarsBuy Them Now! www.spillaneproducts.com

Midler v. Ford Motor(voice sound-alike in advertisement)

White v. Samsung

Sarah Palin Game in Spillane Products Journal

Comedy III v. Saderup

Saderup Warhol

Winter v. DC Comics

Johnny and Edgar Winter Johnny and Edgar Autumn

Dustin Hoffman v. Los Angeles Magazine“Dustin Hoffman isn’t a drag in a butter-colored silk

gown by Richard Tyler and Ralph Lauren heels.”