Right of Publicity Cases
Steven L. Baron
MM 450
April 1, 2008
1
Pop Quiz
 True
or False: The right of publicity
applies to celebrities?
 True or False: The right of publicity
applies to non-celebrities?
2
Answer
 The
right of publicity applies to celebrities
and non-celebrities alike.
3
Right of Publicity Defined
 “[T]he
inherent right of every human
being to control the commercial use of his
or her identity.”

McCarthy, Right of Publicity, 2nd Ed., 2005,
Vol. 1, §1:3
4
Right of Publicity Defined
PROTECTED ASPECTS OF PERSONA






Name
Likeness
Distinctive Voice
Style
Role – If synonymous with actor
Nicknames



“Crazy-Legs Hirsch”
“Here’s Johnny Porta-potties”
Signature
5
Right of Publicity - Defined
 Created


by state law
Common law
Statutory law
 Distinct
from trademark, copyright, falseadvertising or right of privacy
 Infringement = misappropriation
6
Illinois Right of Publicity Act
 765
ILCS 1075/1
 Effective as of 1-1-1999
 Protects the right to control and to chose
whether and how to use one’s individual
identity for commercial purposes
 Requires written consent to use an
individual’s identity for commercial
purposes
 Continues for 50 years after death
7
Cause of Action
1.
2.
3.
Identity of plaintiff
Appropriated by defendant
For commercial advantage
8
Remedies
 Actual
damages and profits of defendant;
or $1,000
 Injunction
 Punitive damages if willful
 Attorney’s Fees (to prevailing party,
discretionary)
9
Problem 1 - The Godfather of Soul
10
Problem #1 – The Godfather of
Soul






Corbis licenses copyrights for stock photographs and
images
Corbis authorized by owner of copyright in photos to
display photo on web site
Corbis has photos of James Brown on web site available
for licensing
Corbis never used photos of Brown to sell or advertise
any product, merchandise, goods or services
Corbis’s website notifies users that it does not own or
license rights of publicity
Brown claims misappropriation of right of publicity
11
The Godfather of Soul
 Trial
court (Round 1): initially grants
Corbis’ motion to dismiss – the actions of
Corbis are non-commercial, vehicle of
information.
 Trial court (Round 2): On motion for
reconsideration, trial court reverses its
initial holding. Some pictures may be sold
to private or commercial users.
12
The Godfather of Soul
appeal – What is it?
 Certified Questions – What are they?
 Interlocutory


Did Corbis use Brown’s photos for a
“commercial purpose”
Was Brown’s claim for misappropriation of
right of publicity pre-empted by copyright law.
13
The Godfather of Soul
 Appellate


court answers:
Commercial purpose – facts are in dispute –
must remand for further proceeding.
Preemption by copyright law – no.
14
A Legislative Response to James
Brown
15
Problem 2
Borat
16
Borat’s “Victim”
17
Borat’s Victims Claim

Defendants solicited and selected plaintiffs to be
in film
 Defendants took plaintiffs to a drinking
establishment to “loosen up”
 Plaintiffs signed “Standard Consent Form”

Movie would only be shown in Europe and never to
be shown in U.S.

Plaintiffs appeared in film and do things they
would otherwise not do
 Film shown in U.S. – makes millions
18
Borat – Causes of Action
 Fraud
 Recission
of Contract
 Common Law False Light
 Statutory False Light (California)
 Appropriation of Likeness
 Negligent Infliction of Emotional Distress
19
Quotes of the Day
“The right to be let alone is indeed
the beginning of all freedom.”
Justice William O. Douglas
“Even the smallest intrusion into
private space by the unwanted
gaze causes damage, because
the injury caused by seeing
cannot be measured.”
Hezzek Re’iyyah, Encyclopedia Talmudit
20