right of publicity
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
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.
Hawaii2013
HI Rev Stat § 482P (1-8)provides 70-year
postmortem right of publicity. Like Indiana,
applies regardless of domicile, and to those who predeceased enactment of
the statute.
New York2015
Did not enact bill that would have provided a 70-year postmortem
right of publicity
Lawsuits - Advertising
Lawsuits - Advertising
Lawsuits – Athletes Does “right of publicity” even apply?
Sports photography - Maloney v. T3 Media (C.D. Calif.) • Company selling photos of NCAA DIII championship game. • Court: Right of publicity would never kick in because defendant was not using athletes’ likenesses in advertisements to sell the photos.
Prior agreements - Wrestler Steve “Wild Thing” Ray’s suit against ESPN (8th Cir.)• Court: Publicity claims pre-empted by copyright because the recordings of pro wrestling events were perpetually licensed to ESPN.• Ray had agreed with Universal Wrestling Foundation that his performances could be recorded and sold.
Lawsuits – College
Athletes • Student-athlete cases, going back to 2009: 3d Circuit: Hart v. EA 9th Circuit: Keller v. EA and O’Bannon v. NCAA
• Keller and O’Bannon were consolidated into In re NCAA Student-Athlete Name & Likeness Litigation
Ed O’Bannon in 1995 and in EA Sports’ NCAA Basketball
Lawsuits – College
Athletes Right of publicity for realistic representations in videogames
Hart (3d Cir.), Keller (9th Cir.)
Both held: “Realistic” depictions of the athletes in videogames don’t count as transformative use; video game 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. Absent the use of actual footage, the motion picture Forrest Gump might as well be just a box of chocolates. Without its historical characters, Midnight in Paris would be reduced to a pedestrian domestic squabble. Note: The dissenting judge’s statement makes an unsupportable leap and demonstrates a lack of awareness of specific exemptions written into most Right of Publicity statutes.
Lawsuits – College Athletes Antitrust: Restraining licensing of name and likeness
O’Bannon v. NCAA (N.D. Calif. 2014).
Held: It is an antitrust violation to restrain amateur athletes from licensing their names and likenesses in telecasts and video games. (Did not specifically address right of publicity claims.)
Status: In late September 2015, the 9th Circuit Court of Appeals upheld lower court’s ruling that NCAA rules restricting payment to college athletes violates antitrust laws, but also determined that a federal judge erroneously allowed players to be paid up to $5,000 per year in deferred compensation.
Fallout of In re NCAA Student-Athlete Name & Likeness Litigation
Order in O’Bannon: late September 2015, the US Ninth Circuit Court of Appeals upheld lower court’s decision that NCAA rules restricting payment to college athletes violate antitrust laws, but also determined that a federal judge erroneously allowed players to be paid up to $5,000 per year in deferred compensation.
Settlements: • Electronic Arts and Collegiate Licensing - $40 million. • NCAA (use of likenesses in videogames) - $20 million.
Attorneys’ fees: $44 million awarded to attorneys who represented the student-athlete plaintiffs.
Lawsuits – College Athletes
But see Marshall v. ESPN (M.D. Tenn. 2015):
Participants in sporting events don't have publicity rights under Tennessee’s statute. (though this is limited to the event itself)
Lawsuits – Pro Athletes
Fred Dryer
Retired players in Madden NFL video games
Davis v. Electronic Arts, Inc. (9th Cir. 2015)
Players win:• Misappropriation because “accurate” representations of the players were central to the video games’ experience.• Players depicted in the “historical games” mode played in NFL before the union – so they never agreed to a licensing deal.
But see: Similar suit in 2009 by Jim Brown dismissed by federal judge in California.
Lawsuits – Pro Athletes
Differing results
But see Noriega vs. Activision Blizzard (Calif. Super. Ct. 2014)
Ex-dictator Manuel Noriega depicted in Call of Duty: Black Ops II.
Dismissed: “The complex and multi-faceted game is a product of defendants’ own expression, with de minimis use of Noriega’s likeness.”
Compare: Dryer and Davis, student-athletes
• The necessity of “accurate depictions” to the product protected NFL Films but doomed EA Sports.
• “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
Other Lawsuits
Trademark registrations
Postmortem rights of publicity
Experience Hendrix LLC v. HendrixLicensing.com LTD (9th Cir. 2014) (regarding Washington state right of publicity law):
“Washington's approach to post-mortem personality rights raises difficult questions regarding whether another state must recognize the broad personality rights that Washington provides.”
Ruling confirmed that Washington’s Right of Publicity statute is Constitutional. Emphasis on acts that occur within the State of Washington.
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/
©2015 Quarles & Brady LLP. This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.