Rights of Publicity on the Net

The right of publicity protects individuals from the unauthorized use of their name, likeness, identity and voice for commercial purposes. The right of publicity is controlled by state law, so the applicable law will vary from one jurisdiction to another. For example, some states extend the right of publicity to protect dead persons, while others do not. In some states, the right of publicity is not even recognized as such. For example, New York does not recognize an explicit right of publicity, but it does recognize a right of privacy which incorporates the same protections that other states call a right of publicity: "Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained [from the person]. . . may maintain an equitable action. . . and may also sue and recover damages for any injuries sustained by reason of such use. . .." N.Y. Civil Rights Law §51.

Because it is usually difficult for an ordinary person to demonstrate damages caused by a violation of his or her right of publicity, the plaintiff in right of publicity cases is usually a celebrity, who is better able to demonstrate that the use of his or her likeness has commercial value that has been, in effect, stolen. However, a non-celebrity is by no means precluded from bringing a right of publicity action.

It is important to understand that the right of publicity does not prevent the media from using a person's likeness in reporting newsworthy events. Rather, the right of publicity only precludes the misappropriation of the person's identity for commercial purposes. Alleged "infringements" of the right of publicity are protected by the First Amendment when they are made for non-commercial media purposes. However, it is far from clear exactly what types of publications are "news" and which types are "advertising" or "commercial purposes." To take an example from the "real" world: a tabloid magazine might run an article about a famous person as a "news" item, but have the goal of boosting its sales by running the piece. Taking the example a step further, the magazine might then explicitly advertise itself on the basis of it having the piece about the celebrity. Compare, for example, the case of Cher v. Forum International, Ltd., 692 F.2d 634 (9th Cir. 1982), cert. denied, 462 U.S. 1120 (1983) (finding no infringement of Cher's right of publicity by a magazine which published and advertised on its cover a non-authorized interview, but finding infringement as to another magazine which did the same, but also falsely stated that the interview was exclusive to that magazine) with Booth v. Curtis Publishing Co., 223 N.Y.S.2d 737 (1962) (no infringement for re-use of photograph of actress originally published in news article to advertise magazine) and Namath v. Sports Illustrated, 371 N.Y.S.2d 10 (1975) (following Booth).

Courts do not generally set a very high standard for what is a newsworthy matter of public interest. In Creel v. Crown Publishers, 496 N.Y.S.2d 219 (1st Dep't 1985), the New York appellate court ruled that a plaintiff could not maintain an action for violation of her right of publicity where the publisher, without the plaintiff's consent, had printed a nude photograph of her in a book called World Guide to Nude Beaches and Recreation, finding that the book was protected by the First Amendment. Courts have also dismissed actions in which the plaintiff's photo was published accompanying an article that had virtually nothing to do with the topic of the article. In Arrington v. New York Times Co., 434 N.E.2d 1319 (1982), the New York Times Magazine printed a photograph of the plaintiff, a black man, in an article about the black middle class. The plaintiff had no relationship to the topic of the article other than his race, but the court ruled that the defendant was immunized from liability by the First Amendment. But, these cases notwithstanding, there are still limits to the extent to which the First Amendment will protect a defendant simply because the defendant claims to be part of the media. In Titan Sports, Inc. v. Comics World Corp., 879 F.2d 85, the Court of Appeals for the Second Circuit ruled that a "Wrestling Poster Magazine" which published oversized photographs of celebrity wrestlers was, in fact, selling commercial posters without permission, and was not protected simply by virtue of the fact that it claimed to be a magazine and therefore part of the media. Rather, the court articulated several factors to consider in determining whether the photographs really were published as a commercial product or as parts of news stories.

The distinction between commercial products and media is likely to become more troublesome in the context of the Internet and emerging technologies. For example, many pages on the Word Wide Web are essentially fan clubs for celebrities, and include information about the celebrity. Suppose such a fan site were operated for commercial purposes without the authorization of the subject celebrity. Or suppose that a commercial company "sponsored" such a fan site, did not profit from the site itself, but included the fact of its sponsorship on the page, and provided links to its own commercial advertising pages. (See our page on Links Liability) Would these sites be deemed to infringe upon the right of publicity of the subject celebrity? An even more common situation involves many corporate sites, which may contain editorial material, but which are designed as a marketing and advertising vehicle. Under these circumstances, will the unauthorized use of a celebrity's name or likeness be permitted as primarily editorial, or will it be prohibited as primarily commercial? The answers remain to be determined by the courts and the legislatures, but at the present time, anyone with a commercial on-line presence who wishes to use a celebrity's name or likeness would be well-advised to obtain authorization from the subject celebrity or proceed at their own risk.

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