What are “Name and Likeness” Rights?

Are you a nobody? A celebrity? Not sure? Fortunately for you, it doesn’t matter. You have rights. Specifically, rights to control any commercial use of your name, image, likeness, or some other identifying aspect of identity, limited (under U.S. law) by the First Amendment. See Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).This “right of publicity” is sometimes referred to as publicity rights or even personality rights.

In Zacchini v. Scripps-Howard Broadcasting Co., the U.S. Supreme Court has even ruled on your rights of publicity, holding that the First Amendment did not immunize a television station from liability for broadcasting a person’s act (specifically, Hugo Zacchini’s human cannonball act) without consent. The Supreme Court hasn’t ruled before or since.

The most common variety of public rights litigation involves use of a celebrity’s images or likeness without their permission. You probably aren’t a celebrity if you haven’t had your name and likeness misappropriated. But it’s not just the living.  The dead are just as likely to be misappropriated. In 2003, John Dillinger’s grandnephew sued Dillinger’s restaurant for using the 1930s gangster and bank robber’s name, image, and likeness. The grandnephew lost because the jurisdiction (Indiana) only enacted its publicity rights statute in 1994.

In another publicized case, a federal judge ruled that Marilyn Monroe’s rights of publicity weren’t protectable in California because she was domiciled in New York when she died. California has tough publicity laws, New York has none for deceased celebrities.

Rights of publicity aren’t without limitations though. The great Jim Brown sued EA Sports using a false endorsement theory under the Lanham Act, but the court held that the First Amendment protects the unauthorized use of a trademark in an artistic work when the mark has artistic relevance to the work and does not explicitly mislead as to the source or content of the work. Applying this test, the court found a lack of implied endorsement and held that the First Amendment protected EA in its use of a virtual football player that resembled Mr. Brown.

Publicity rights are generally considered property rights which are assignable (as opposed to personal rights which generally do not survive the owner).

Generally, you have the right to be free from unwarranted publicity or the unwarranted appropriation or exploitation of your personality and the publicizing of your private affairs, but only when the public has no legitimate concern. In turn, the public concern exception is limited when the publicity becomes a wrongful intrusion into your private activities in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.