It is not clear whether Arizona recognizes a claim for publication of private facts.  Although the Court of Appeals of Arizona discussed possible elements of a publication of private facts claim in Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243 (Ariz. App. 1986), the Court noted that Arizona precedent regarding the existence of such a claim was not settled.  Id. at 1246 n. 3; see also Cluff v. Farmers Ins. Exchange, 460 P.2d 666, 669 (Ariz. App. 1969) (noting that Arizona "possibly" recognizes a claim for publication of private facts).

Elements of a Private Facts Claim

The only Arizona Supreme Court case to discuss the elements of a private facts claim indicated that "[a] person who unreasonably and seriously interferes with another's interest in not having his affairs known to others" might be held liable for invasion of privacy.  Reed v. Real Detective Pub. Co., 162 P.2d 133, 137 (Ariz. 1945). However, at least one court has indicated that this description of the claim is outdated.  Rutledge, 715 P.2d at 1246 n.3.  If Arizona were to recognize a claim for publication of private facts, the Arizona Supreme Court would likely follow the generally accepted elements for a such a claim.

The Arizona Supreme Court has recognized that privacy rights are absent or limited “in connection with the life of a person in whom the public has a rightful interest, [or] where the information would be of public benefit.” Accordingly, the Court has held in a related context that public servants have no right to privacy concerning the performance of their public lives or duties. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 789 (Ariz. 1989) (claim for false light invasion of privacy).

Relying on Public Records

The Arizona Supreme Court has not addressed the question of whether liability for publication of private facts may be imposed for dissemination of information in the public record.  However, in the context of a claim for false light invasion of privacy, at least one Arizona court has recognized a privilege against liability for reporting information from the public record as long as the report is a fair and accurate abridgment of the records used. Sallomi v. Phoenix Newspapers, Inc., 771 P.2d 469, 472 (Ariz. App. 1989). 

Consent

The Arizona Supreme Court has not specifically addressed the question of whether the consent of the person whose information is published is a defense to a private facts claim.  The Court has, however, recognized in another privacy-related context that that consent is a defense, and also that a plaintiff who has become a “public character” may be found to have waived his privacy rights. Reed v. Real Detective Pub. Co., 162 P.2d 133, 138 (Ariz. 1945).  It is not clear if a "public character" is the same as a "public figure" for the purposes of defamation law (scroll down).

Statute of Limitations

The statute of limitations for any privacy claim in Arizona is 2 years. A.R.S. § 12-542.

California recognizes a legal claim for publication of private facts. For the most part, the law in California is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of California law that are different from the general description.

Elements of a Private Facts Claim

In California, the elements of a publications of private facts claim are: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern. California is notable for also requiring a plaintiff to show that the defendant published private facts "with reckless disregard for the fact that reasonable men would find the invasion highly offensive." Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).

This requirement gives you extra protection against a private facts claim. It means that a plaintiff must show more than that you were simply wrong in believing publication of the facts in question was not offensive; the plaintiff must show that you entertained serious doubts about its offensiveness and decided to publish the facts in question anyway. In a court, this would involve examination of your state of mind at the time of the publication.

Under California law, the plaintiff must affirmatively prove that the facts published were not a matter of legitimate public concern; otherwise, the claim fails. The courts consider three factors when deciding whether facts are of legitimate public concern: (1) the social value of the facts published; (2) the depth of the intrusion into ostensibly private affairs; and (3) the extent to which the plaintiff voluntarily assumed a position of public notoriety. Most facts about celebrities and public officials are considered matters of legitimate public concern. Private facts about ordinary people involved in events or occurrences of public significance are of legitimate public concern if they bear a reasonable relationship to the newsworthy topic. Courts applying California law have found the following information, among other things, to be newsworthy (i.e., of legitimate public concern):

• publication of an actress's address;
• photos showing potential abuse of military prisoners;
• reports of recent crimes (but not necessarily including names of witnesses and victims);
• facts surrounding the disappearance of a man believed to have been murdered by the Manson family, and the fact that the plaintiff was the last person to see him alive;
• the sexual orientation of a man who helped thwart an assassination attempt on President Ford;
• the name of a young woman who had kept her pregnancy secret, given birth, and asked her brother (also named) to abandon the baby at a hospital under false pretenses;
• images of automobile accident victims being rescued and treated; and
• information and records reflecting misconduct by the children of a candidate for public office.

In contrast, courts applying California law have found the following things, among others, to be potentially non-newsworthy:

• the fact that the first female student body president of a college was a transsexual;
• embarrassing stories from a prominent body surfer's personal history;
• the name of a woman who had discovered her murdered roommate and seen the murder suspect in her apartment, when the suspect was still at large; and
• the identity of a participant in the federal witness protection program.

For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: California.

Relying on Public Records

In California, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. For example, in Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004), the California Supreme Court held that a news organization could not be held liable for broadcasting truthful information obtained from official court records about the plaintiff's past criminal history. So far, California courts have only applied this rule to information obtained from court records, but the protection could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

California recognizes consent as a defense to a publication of private facts claim. California courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in California is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations in California for publication of private facts claims is not entirely clear. A number of California court decisions applying California law have held that the one-year statute of limitations for libel actions applies to claims for invasion of privacy, which includes claims for publication of private facts. The statute of limitations for libel actions is found at Cal. Civ. Proc. Code § 340.

Florida recognizes a legal claim for publication of private facts. For the most part, the law in Florida is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Florida law that are different from the general description.

Elements of a Private Facts Claim

In Florida, the elements of a publications of private facts claim are: (1) the publication; (2) of private facts; (3) that are offensive; and (4) are not of public concern.

Florida law does not impose liability for publication of facts that are of legitimate public concern. The Florida Supreme Court has recognized that this "newsworthiness" exception presents a "formidable obstacle" for a plaintiff bringing an invasion of privacy lawsuit. Hitchner v. Cape Publication, Inc., 549 So. 2d 1374, 1377 (Fla. 1989). This exception to liability is very broad; without question, this covers things like current events of public significance and information about the actors who take part in them. It also covers "soft news" and other human interest portrayals and accounts.

The courts have recognized, however, that individuals maintain a zone of privacy relating to certain sensitive personal matters. As a general rule, private facts about public officials and celebrities are more likely of legitimate public interest than private facts about ordinary people who get involuntarily caught up in newsworthy events.

Courts applying Florida law have found the following things, among others, to be newsworthy (i.e., of legitimate public concern):

• facts relating to child abuse allegations, which came from a confidential file released to the press in violation of a Florida statute, when the reporter was using the facts to call into question a criminal court's decision rather than "attempting to sensationalize a private nongovernment matter";
• a newspaper story detailing the abduction of a woman by her estranged husband and his holding her hostage, and publication of a photograph of the woman, clad only in a dish towel, after she was rescued by the police;
• a "canned" news film depicting the plaintiff, who was an innocent bystander during a gambling raid on a cigar store;
• a factual account of the murder of the plaintiff's husband;
• a depiction of the plaintiff as a murder witness in Bob Dylan's song about the murder trial of Ruben "Hurricane" Carter;
• a television news broadcast showing the plaintiff, a lobbyist, in a hotel bar, when the TV program was documenting how state employees spent time during a bomb threat incident that evacuated the capitol building; and
• a conversation at Bush campaign headquarters, in which the plaintiff, a political campaign worker, shared bizarre ideas like the benefits of having society guarded by a clone army, when the purpose of the article was to help readers understand the nature of support for President Bush.

In contrast, one Florida court held that a plaintiff stated a cause of action for publication of private facts when she alleged that a TV program had broadcast an interview with her about her unfortunate plastic surgery experience without disguising her voice and concealing her face as promised. The court rejected the argument that the information disclosed in the interview was newsworthy, concluding that "while the topic of the broadcast was of legitimate public concern, the plaintiff's identity was not." Doe v. Univision Television Group, Inc., 717 So.2d 63, 65 (Fla. Dist. Ct. App. 1998).

For additional information and discussion of Florida cases, see the Reporters Committee's Photographers' Guide to Privacy: Florida and the Florida Bar's Reporter's Handbook.

Relying on Public Records

In Florida, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Florida courts have applied this protection to information obtained from court records (and from proceedings in open court), but it could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Florida recognizes consent as a defense to a publication of private facts claim. Florida courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Florida is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for publication of private facts claims in Florida is four years. See Fla. Stat. § 95.11(3)(p).

Georgia recognizes a legal claim for publication of private facts. For the most part, the law in Georgia is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Georgia law that are different from the general description.

Elements of a Private Facts Claim

In Georgia, the elements of a publication of private facts claim are: (1) the disclosure of private facts must be a public disclosure; (2) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (3) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.

Georgia law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Wilson v. Thurman, 445 S.E.2d 811, 813 (Ga. Ct. App. 1994). Georgia courts have repeatedly affirmed that reporting about issues concerning crime and criminal investigations are matters of public interest and cannot support a claim of invasion of privacy.

For example, courts applying Georgia law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

• the identity of a man who recalled observing a noteworthy automobile at a double-homicide crime scene and informed police, his neighbors and the press about his observation;


• a truthful description of a vicious attack of a high school student by a group of his fellow students;


• a state investigation report concerning allegations of sexual harassment by a state employee that was disclosed to the media pursuant to an Open Records Act request;


• the name of a woman who shot and killed an intruder who attempted to assault her sexually; and


• the depiction of an inmate at a corrections facility that was broadcast by the media in connection with a story about improper use of prison labor by county officials.

In contrast, a Georgia appellate court affirmed the award of damages to a plaintiff whose identity as an AIDS patient was disclosed in a television program about AIDS. The court cited legislative enactments that protected persons against the disclosure of confidential AIDS information and reasoned that in each prior case which had rejected a claim for publication of private facts based upon the public interest of the subject matter, the information disclosed concerned a “criminal incident or investigation.” Multimedia WMAZ v. Kubach, 443 S.E.2d 491, 494-95 (Ga. App. Ct. 1994).

For additional information and discussion of Georgia cases, see the Reporters Committee's Photographers' Guide to Privacy: Georgia.

Relying on Public Records

In Georgia, you generally cannot be held liable for publishing truthful information obtained from government records open to public inspection. Courts have applied this protection to information obtained from court records and statements made before a public body, but it could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Georgia recognizes consent as a defense to a publication of private facts claim. Georgia courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record verbal consent using an audio or video recording device. The age of majority in Georgia is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for publication of private facts claims in Georgia is two years. See Ga. Code Ann. § 9-3-33 (2006).

Illinois recognizes a legal claim for publication of private facts. For the most part, the law in Illinois is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Illinois law that are different from the general description.

Elements of a Private Facts Claim

In Illinois, the elements of a publications of private facts claim are: (1) publicity was given to private facts; (2) the facts were private and not public facts; and (3) the matter made public would be highly offensive to a reasonable person.

Illinois law does not impose liability for invasion of privacy when the invasion is deemed newsworthy or is a matter of legitimate public concern. Persons performing official duties for the government have no right of privacy as to information concerning discharge of those duties. Cassidy v. Am. Broad. Cos., 377 N.E.2d 126, 132 (1st. Dist. 1978). In addition, courts applying Illinois law have found the following things, among others, to be newsworthy:

• a newspaper article on the dangers of drugs that disclosed the identity of a teen who overdosed on drugs;
• a dramatization made by a publisher of a newspaper article describing the murder of a woman; and
• the broadcast of an undercover police officer in the performance of his official duties.

In contrast, an Illinois court has held that a jury reasonably could find that a photograph of a woman's dead son (killed by gunshot wound in a gang-related incident) and her statements to his expired corpse in a private hospital room were not of legitimate public concern, even though the general topic of gang violence was newsworthy. It reasoned that the jury could determine that the newspaper did not need the plaintiff's intimate statements to her son or his photograph to convey the human suffering behind gang violence. See Green v. Chicago Tribune, 675 N.E.2d 249 (Ill. App. Ct. 1996).

Relying on Public Documents

In Illinois, you generally cannot be held liable for publishing truthful information gleaned from public records which include, for example, criminal records and divorce decrees. The protection could apply to information obtained from other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Illinois recognizes consent as a defense to a publication of private facts claim. Illinois courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Illinois is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations in Illinois for publication of private facts claim is one year. See 735 Ill. Comp. Stat. 5/13-201.

Whether Indiana recognizes a legal claim for publication of private facts is unsettled. Before 1997, Indiana's lower courts recognized a such a claim. But, in Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997), two Justices of the Indiana Supreme Court ruled that Indiana law did not recognize a legal claim for publication of private facts, while three other Justices agreed with the result in the case but not with their reasoning. Later courts have disagreed on whether this claim still exists in Indiana.

To the extent that Indiana law still recognizes a publication of private facts claim, it is generally similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Indiana law that are different from the general description.

Elements of a Private Facts Claim

If Indiana still recognizes a private facts claim, the elements are: (1) a public disclosure of private information concerning the plaintiff that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (2) to persons who have no legitimate interest in the information; (3) in a manner that is coercive and oppressive.

Indiana law does not impose liability for publication of facts that are of legitimate public interest. Nobles v. Cartwright, 659 N.E.2d 1064, 1073 (Ind. Ct. App. 1995). Courts applying Indiana law have found the following things to be of legitimate public interest (i.e., newsworthy):

• a suspected arsonist's loan status disclosed by a bank to an arson investigator;


• debts owed by the employees of a company disclosed by a creditor to the employer; and


• the details of an extramarital affair related to a sexual harassment claim against agents of the State Lottery Commission of Indiana made public by the media.

Relying on Public Records

In Indiana, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection, but there is little case law on this subject. This protection applies most commonly to information obtained in court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Indiana recognizes consent as a defense to a publication of private facts claim. Indiana courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Indiana is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

Assuming that Indiana still recognizes a publication of private facts claim, the statute of limitations in Indiana is two years. See Ind. Code § 34-11-2-4.

Massachusetts recognizes a legal claim for publication of private facts based on Mass. Gen. Laws ch. 214, § 1B, which proscribes "unreasonable, substantial or serious interference" with one's privacy. For the most part, the law in Massachusetts is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Massachusetts law that are different from the general description.

Elements of a Private Facts Claim

In Massachusetts, a publication of private facts claim requires proof of a publication of facts of a "highly personal or intimate nature" which are "of no business of the public." In contrast to several other jurisdictions, the disclosure need not be made to the public at large and a disclosure to two people has been found sufficient to warrant relief under § 1B. Offensiveness to a reasonable person is not one of the statutory criteria under § 1B, but Massachusetts courts consider publication of private information "of no business to the public" to be "offensive." See Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. Ct. 1979). Massachusetts courts have rejected a number of invasion of privacy claims based on conduct taking place in public locations because the facts in question were not private. See the general description for more information on the elements of a private facts claim.

Massachusetts law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Peckham v. Boston Herald, Inc., 719 N.E.2d 888, 892-94 (Mass App. Ct. 1999). For example, courts applying Massachusetts law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

• a photograph of a girl taken shorty after she died in a car accident;


• a biography of an inventor;


• passages from an autobiographical book depicting sexual relations with the author's former boyfriend, when the passages related to an examination of when undesired physical intimacy crosses the line into non-consensual sexual relations in the context of the author's unique health condition;


• a report about an applicant for a school superintendent's position who has reached an advanced point in the hiring process;


• a report about allegations of sexual harassment against the owner of a youth hostel open to the public; and


• a television network's broadcast of the plaintiff's arrest for murder.

In contrast, Massachusetts courts have found that confidential medical information is not a matter of legitimate public concern and have upheld an invasion of privacy claim based on a report publishing unsubstantiated ten-year-old investigation material about the plaintiff, a public figure.

Relying on Public Records

In Massachusetts, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Massachusetts courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Massachusetts recognizes consent as a defense to a publication of private facts claim. Massachusetts courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Massachusetts is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for publication of private facts claims in Massachusetts is three years. See Mass. Gen. Laws ch. 260, § 2A.

 

Michigan recognizes a legal claim for publication of private facts. For the most part, the law in Michigan is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Michigan law that are different from the general description.

Elements of a Private Facts Claim

In Michigan, a cause of action for public disclosure of private facts requires the disclosure of (1) private information that is not already a matter of public record or otherwise open to the public eye; (2) that is of no legitimate concern to the public; and (3) the publication of which would be highly offensive to a reasonable person.

Michigan law does not impose liability for publishing facts that are of legitimate public concern or newsworthy. Courts applying Michigan law have found the following things to be of legitimate public concern (i.e., newsworthy):

• a newspaper article about the plaintiff's husband's death by fire along with another woman, including biographical information about the plaintiff and her children and mentioning that her husband had been seen in a bar with the other woman before the fire;

• a report disclosing the address of a foreign judge who had received death threats from a well-known drug cartel because the death threats placed his neighbors in danger; and

• information about the disciplinary measures imposed on the plaintiff, a police officer, who allegedly failed to properly perform his duties;

In contrast, a Michigan appellate court held that, even though the topic of abortion is a matter of public interest, the identities of patients actually undergoing the procedure were not. See Doe v. Mills, 536 N.W.2d 824 (Mich. Ct. App. 1995). Similarly, another court held that, while the general topic of a newspaper article -- unique love relationships -- was of legitimate public concern, the specific facts disclosed about the plaintiff -- including that she had several abortions, engaged in partner swapping, and was involved in a surrogate parenting relationship with her former husband and her maid of honor -- were not necessarily newsworthy. See Winstead v. Sweeney, 517 N.W.2d 874 (Mich. Ct. App. 1994).

Relying on Public Records

In Michigan, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. This includes court records and other government records that place information before the public eye.

Consent

Michigan recognizes consent as a defense to a publication of private facts claim. Michigan courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Michigan is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

There is no statute of limitations for an invasion of privacy claim in Michigan, but a publication of private facts claim would likely be governed by the general three-year statute of limitations for negligence claims. Mich. Comp. Laws § 600.5805(8).

Missouri was one of the first states to recognize a legal claim for the publication of private facts. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). For the most part, the law in Missouri is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Missouri law that are different from the general description.

Elements of a Private Facts Claim 

In Missouri, a publication of private facts claim requires proof of: (1) publication or "publicity" (2) absent any waiver or privilege, (3) of private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities." Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488 (Mo. Ct. App. 1990).

Missouri law defines "publicity" as a disclosure made to the general public or likely to reach the general public. Missouri courts have treated the oral disclosure of private facts in a public setting as sufficient "publicity" to give rise to potential liability. See Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959).

Missouri law recognizes a distinction between newsworthy events and "private matters" in which the public has no legitimate concern. While a topic might be newsworthy, however, this does not mean that every individual's connection or participation in that matter is newsworthy. For example, the Missouri Supreme Court held that while a plaintiff's unusual medical condition may have been a matter of public interest and thereby newsworthy, her identity was a private matter. See Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). Likewise, the success of a hospital's in vitro fertilization program was newsworthy, but the identity of plaintiffs participating in the program was a private matter. See Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488 (Mo. Ct. App. 1990). Missouri courts have consistently ruled that medical conditions and hospital stays are private facts.

Where the police, public bodies, or legal institutions are involved, the matter will likely be one of public interest. Buller v. Pulitzer Pub. Co., 684 S.W.2d 473 (Mo. Ct. App. 1984). 

Certain details about an individual's life may fall into the public interest through legal action, police activity, or the action of other public bodies (even if that individual had no intention of making them known to the public). In Williams v. KCMO Broadcasting Div. Meredith Corp., 472 S.W.2d 1 (Mo. Ct. App. 1971), a man was filmed being put into a police car after he was arrested with five others. During a broadcast of the footage, commentary stated that three of the men would be charged in connection with a crime. Even though the plaintiff did not participate in a crime and was released without being charged, the court held that he did not have a cause of action for invasion of privacy.

If another media outlet has already disclosed information about an individual, that information will not be considered private for the purposes of a subsequent publication by another publisher. However, this does not apply to information not contained in the original publication. See Barber v. Time, Inc., 159 S.W.2d 291 (1942).

Missouri law requires plaintiffs to show that a publication shows a "serious, unreasonable, unwarranted and offensive invasion of private affiars" before damages can be awarded. Barber v. Time, Inc., 159 S.W.2d 291 (1942). Because of this requirement, a Missouri court noted that the state "places a heavier burden on the plaintiff than do many of the other jurisdictions." Williams v. KCMO Broad. Div. Meredith Corp., 472 S.W.2d 1 (Mo. Ct. App. 1971). 

Relying on Public Records

In Missouri, you generally cannot be held liable for publishing truthful information that is a matter of public record. A federal court applying Missouri law held that a publication of private facts claim could not be based on information revealed in open court proceedings. See McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir. 1976). A Missouri court applied this protection to information revealed in an open meeting of a city council. See Boeke v. Williams, 721 S.W.2d 794 (Mo. Ct. App. 1986). It would likely apply to information obtained from other public government records as well. 

Waiver

Missouri appears to recognize waiver (or consent) as a defense to a publication of private facts claim. However, courts have not addressed this issue in depth. 

Statute of Limitations

Missouri does not provide a statute of limitations period specific to the filing of an invasion of privacy actions, but has a general statute of limitations of five years. Mo. Rev. Stat. § 516.120. This five-year statute of limitations likely applies to causes of action for the publication of private facts. In defamation cases, Missouri applies a statute of limitations of two years. Mo. Rev. § 516.140. Missouri courts have applied this two-year statute of limitations when plaintiffs have attempted to sue for false light or invasion of privacy, but the court determines that the plaintiff's claim is actually one for defamation. See Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475 (Mo. 1986).

New Jersey recognizes a legal claim for publication of private facts. For the most part, the law in New Jersey is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of New Jersey law that are different from the general description.

Elements of a Private Facts Claim

In New Jersey, the elements of a publication of private facts claim are: (1) the matter or matters revealed were actually private; (2) dissemination of such facts would be offensive to a reasonable person; and (3) there is no legitimate public interest in being apprised of the facts publicized.

New Jersey law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Courts applying New Jersey law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

• a book chapter describing a crime that took place more than ten years previously, in a case brought by victims of the crime;


• a student newspaper article about a University investigation of misconduct on the part of University staff, including the results of the investigation;


• a newspaper article about the sale of a large home that was a local historic landmark, including information about the sale price, the number of rooms, and the owner's occupation; and


• a radio talk show host's disclosure that the plaintiff, a "media monitor," had been in a mental institution, when the plaintiff had engaged in an ongoing and heated public debate with the talk show host about the propriety of the host's views.

For additional information and discussion of New Jersey cases, see the Reporters Committee's Photographers' Guide to Privacy: New Jersey.

Relying on Public Records

In New Jersey, you generally cannot be held liable for publishing truthful information gathered from "public records." Not all government records will qualify as "public records," and the extent of the privilege is not clear. So far, New Jersey courts have applied this privilege to information obtained from court records (and from proceedings in open court), as well as to a claim for disability benefits filed with an administrative agency. In any event, information gathered from any kind of government record that is open to public inspection is unlikely to be a private fact because it is already exposed to the public eye.

Consent

New Jersey recognizes consent as a defense to a publication of private facts claim. New Jersey courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in New Jersey is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

Statute of Limitations

New Jersey applies the one-year statute of limitations for defamation claims to publication of private facts claims as well. See N.J. Stat. Ann. 2A:14-3.

North Carolina does not recognize a legal claim for the publication of private facts. See Hall v. Salisbury Post, 372 S.E.2d 711 (N.C. 1988). However, the North Carolina Supreme Court has suggested that a plaintiff might be able to bring an intentional infliction of emotional distress claim under some circumstances involving the publication of embarrassing private facts.

 

Ohio recognizes a legal claim for publication of private facts. For the most part, the law in Ohio is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This section addresses only those aspects of Ohio law that are different from the general description.

Elements of a Private Facts Claim

In Ohio, the elements of a publication of private facts claim are: (1) a public disclosure; (2) the facts disclosed must concern the private life of an individual, not his or her public life; (3) the matter disclosed must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the disclosure must have been made intentionally, not negligently; and (5) the matter disclosed must not be of legitimate concern to the public.

Ohio law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Examples of things that Ohio courts have considered to be of legitimate public concern or newsworthy include:

• a drug raid, including the arrest of an innocent bystander that was broadcast on television;
• the name and address of a murder suspect's father;
• the manner in which the police handle domestic violence complaints;
• information concerning a county government's Medicaid fraud investigation; and
• allegations of domestic abuse against a police chief.

For additional information and discussion of Ohio cases, see the Reporters Committee's Photographers' Guide to Privacy: Ohio.

Relying on Public Records

In Ohio, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Ohio courts have applied this protection to information obtained from court records, police personnel files, and Internal Affairs Department files, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Ohio recognizes consent as a defense to a publication of private facts claim. Ohio courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Ohio is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for invasion of privacy claims in Ohio is four years. See Ohio Rev. Code Ann. § 2305.9(D).

Pennsylvania recognizes a legal claim for publication of private facts. For the most part, the law in Pennsylvania is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Pennsylvania law that are different from the general description.

Elements of a Private Facts Claim

In Pennsylvania, the elements of a publication of private facts claim are: (1) publicity given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.

Pennsylvania law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Pennsylvania courts consider information newsworthy when it concerns "relatively current events such as in the common experience are likely to be of public interest." Jenkins v. Dell Publ'g Co., 251 F.2d 447, 451 (3d Cir. 1958).

Courts applying Pennsylvania law have found the following things to be of legitimate public concern or newsworthy:

• the identity of a person running for public office;
• the use of public tax dollars to pay a privately retained psychologist;
• the terms of an employment discrimination settlement;
• the prosecution of a former police officer, charged with heinous crimes against a minor;
• a couple's marriage and subsequent divorce; and
• a photograph of a Pittsburgh Steelers fan with his fly undone.

In contrast, one court held that a photograph of a woman in a bathtub was not newsworthy because many people engage in bathing on a daily basis and the media generally does not consider it worth reporting publicly. McCabe v. Vill. Voice, Inc., 550 F.Supp. 525, 530-31, n.10 (D.C.Pa. 1982).

For additional information and discussion of Pennsylvania cases, see the Reporters Committee's Photographers' Guide to Privacy: Pennsylvania.

Relying on Public Records

Pennsylvania law recognizes a constitutional privilege for publishing truthful facts contained in public records. So far, Pennsylvania courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Pennsylvania recognizes consent as a defense to a publication of private facts claim. Pennsylvania courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Pennsylvania is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for a publication of private facts claims in Pennsylvania is one year. See Pa. Cons. Stat. § 5523(1).

Texas recognizes a legal claim for publication of private facts. For the most part, the law in Texas is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. Here, we will address only those aspects of Texas law that are different from the general description.

Elements of a Private Facts Claim

In Texas, in order to recover for public disclosure of private facts, a plaintiff must show that (1) publicity was given to matters concerning his or her private life; (2) the publication of these facts would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized was not of legitimate public concern.

Texas law does not impose liability for publication of information that is of legitimate public concern or newsworthy. A federal court applying Texas law has indicated that "reports of the investigation of crimes or matters pertaining to criminal activity have almost without exception been held to be newsworthy or matters of public interest as a matter of law." Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007)

Texas courts have found the following things, among others, to be of legitimate public concern or newsworthy:

• information that plaintiff was a gay, HIV-positive police officer;
• an incident involving the taping of high school students changing clothes by their band director; and
• details about a blackmailing scheme, through which a husband and wife team extorted thousands of dollars from the wife's lovers.

In addition, a photograph that was published in a newspaper that accidentally revealed a high school soccer player's genitalia was protected because the photograph accurately depicted a public, newsworthy event. The court reasoned the First Amendment of the U.S. Constitution and the Texas Constitution provided the newspaper with immunity from liability for damages. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 905 (Tex. App. 1991)

For additional information and discussion of Texas cases, see the Reporters Committee's Photographers' Guide to Privacy: Texas.

Relying on Public Records

In Texas, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Texas courts have applied this protection to information revealed in open court proceedings and contained in police records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Texas recognizes consent as a defense to a publication of private facts claim. Texas courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Texas is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for a publication of private facts claim in Texas is two years. See Tex. Civ. Prac. & Rem. Code § 16.003(a).

Virginia does not recognize a legal claim for the publication of private facts. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (Va. 2002).

 

Washington recognizes a legal claim for publication of private facts. The law in Washington is likely similar to that described in the general page on publication of private facts, but few Washington cases deal directly with this legal claim. This page addresses those aspects of Washington law, to the extent it is known, that are different from the general description.

Elements of a Private Facts Claim

In Washington, the elements of a publication of private facts claim are: (1) public disclosure (2) of a matter concerning the private life of another (3) that would be highly offensive to a reasonable person, and (4) that is not of legitimate concern to the public.

Washington law does not impose liability for publication of information that is of legitimate public concern or newsworthy. In one case, a Washington court indicated that the circumstances of the death of a young woman found naked on the side of the road were a matter of "immediate public concern" even though neither the woman nor her parents were public figures. See Moloney v. Tribune Publ'g Co., 613 P.2d 1179 (Wash. Ct. App. 1980). Washington courts probably would follow the courts of other states in determining what is a matter of legitimate public concern. See the general description for a sense of what others courts have said about this issue.

Relying on Public Records

In Washington, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection because such information is already exposed to the public eye. One case has refused to impose liability for publishing information contained in a police investigation report. See Moloney v. Tribune Publ'g Co., 613 P.2d 1179 (Wash. Ct. App. 1980).

Consent

No Washington cases address whether consent is a defense to a publication of private facts claim, but the general trend in all states is to recognize such a defense. Washington courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record verbal consent using an audio or video recording device. The age of majority in Washington is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for a publication of private facts claim in Washington is not settled.

The District of Columbia recognizes a legal claim for publication of private facts. For the most part, the law in D.C. is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of D.C. law that are different from the general description.

Elements of a Private Facts Claim

In D.C., the elements of a publications of private facts claim are: (1) publication; (2) of private facts; (3) in which the public has no legitimate concern; and (4) the publication of which would cause suffering, shame, or humiliation to a person of ordinary sensibilities.

D.C. law does not impose liability for publication of facts that are "matters of legitimate public or general interest." Dresbach v. Doubleday & Co., 518 F. Supp. 1285, 1287 (D.D.C. 1981). This "newsworthiness" exception is not limited to dissemination of news about current events or public affairs, but also protects "information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period." Vassiliades v. Garfinckel's,492 A.2d 580, 589 (D.C. 1985).

Individuals retain a zone of privacy relating to their private lives, however, and the defense will not protect the disclosure of facts unless there is a "logical nexus" (i.e., reasonable relationship) between the disclosed facts and the topic of public interest. As a general rule, private facts about public officials and celebrities are more likely of legitimate public interest than private facts about ordinary people who get involuntarily caught up in newsworthy events.

Courts applying D.C. law have found the following things, among others, to be newsworthy (i.e., of legitimate public or general interest):

• information about the plaintiff's family life as a child, in the course of a book about the plaintiff's brother murdering their parents twenty years before;
• information about an attorney's personal assets and business ventures; and
• a report about the alleged drug use of a police officer and its cover-up.

Courts applying D.C. law have found the following things to be potentially non-newsworthy:

• a child's description of a specific instance of sexual abuse; and
• "before-and-after" photographs of the plaintiff which revealed that she had undergone plastic surgery, in the context of a medical doctor's public presentation on the benefits of plastic surgery.

For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: District of Columbia.

Relying on Public Documents

In the District of Columbia, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. In Wolf v. Regardie, 553 A.2d 1213, 1221 (D.C. 1989), the D.C. Court of Appeals refused to impose liability on a defendant who published financial information gathered from "court files, tax ledgers, and agency records of this City and the federal government." The protection could apply to information obtained from other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

The District of Columbia recognizes consent as a defense to a publication of private facts claim. D.C. courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in D.C. is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations in D.C. for publication of private facts claims is not entirely clear. A number of federal court decisions applying D.C. law have held that the one-year statute of limitations for defamation actions applies to claims for invasion of privacy, which includes claims for publication of private facts. D.C. Code § 12-301.

This page covers legal information specific to the State of Arizona. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Arizona state courts have not explicitly recognized a common law right of publicity, although at least one older state case recognized a claim for invasion of privacy based upon "mental pain and annoyance" caused by the unauthorized display of one's picture. Reed v. Real Detective Pub. Co., 162 P.2d 133, 128 (Ariz. 1945). It is not clear whether this right of privacy survives in modern Arizona law. However, the United States District Court for the District of Arizona has held that there is "no reason why a claim for invasion of the right of publicity should not be recognized in Arizona." Pooley v. Nat'l Hole-In-One Ass'n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000).

Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians. A.R.S. §§ 12-761, 13-3726.

THE COMMON LAW RIGHT

What the Common Law Right of Publicity Protects

Although the case law is sparse, the right of publicity in Arizona at least protects a “celebrity’s name and likeness.” Pooley at 1112.  In Pooley, a promotional video depicted a professional golfer teeing off and walking across the golf course while a voice-over identified him by name.  The United States District Court for the District of Arizona held that this was sufficient grounds for a cause of action.

What Constitutes a Common Law Violation

In Pooley, a professional golfer shot a hole-in-one for a million dollars.  Years later, a marketing organization used video footage of his feat, without his permission, to advertise its own “Million Dollar Hole-in-One” promotional product.  The United States District Court for the District of Arizona applied a four factor test to determine whether or not the plaintiff had a cause of action for infringement of his right of publicity: “(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  Pooley at 1111–1112.  The court held that the plaintiff could bring a claim for infringement of his right of publicity. 

Certain “incidental” uses are exempt from right of publicity claims as they fail to convey a commercial advantage to a defendant. In particular, uses such as “news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses” is not considered “use for purposes of trade,” and therefore these uses are incidental.  Pooley at 1112.  The United States District Court for the District of Arizona has considered several factors in determining whether a use is incidental, such as:

(1) whether the use has a unique quality or value that would result in commercial profit to the defendant; (2) whether the use contributes something of significance; (3) the relationship between the reference to the plaintiff and the purpose and subject of the work; and (4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.

Pooley at 1112. In Pooley, defendants argued that the use of the plaintiff’s name and likeness was incidental because it only lasted for several seconds of an eight minute video.  The court disagreed, finding that the plaintiff’s identity was “crucial” (italics in original) to the commercial, as it was necessary to show golfers and potential buyers of the defendant’s event that million dollar hole-in-one shots were possible.  The court also explained that the commercial’s depiction and identification of an amateur golfer shooting a hole-in-one did not change their analysis, as the video did not explain that the amateur too had won a million dollars.  Instead, the “plaintiff was specifically selected because of his distinction and his wide market appeal.”

If a plaintiff consents to the use of their image, then that use is exempt from a right of publicity claim.  In Pooley and in Lemon v. Harlem Globetrotters Int'l, Inc., 437 F. Supp. 2d 1089, 1100 (D. Ariz. 2006), the federal district court in Arizona indicated that the plaintiff has the burden of proof to show lack of consent, rather than the burden being on the defendant to establish that consent was granted.

Transfer of rights by death or assignment

If Arizona’s early conception of the right to control one’s image as a subset of the general right of privacy remains good law, the right of publicity would likely not descend under Arizona law. A.R.S. § 14-3110 indicates that privacy rights do not survive the death of the person.  Similarly, such rights would likely not be assignable, as Arizona courts have held that privacy claims cannot be assigned.  Martinez v. Green, 131 P.3d 492, 495 (Ariz. Ct. App. 2006). It is not clear whether a right of publicity would be descendible or assignable if Arizona has abandoned this concept.

Defenses

The First Amendment can protect speech that would otherwise infringe on a plaintiff’s right of publicity.  The United States District Court for the District of Arizona draws a distinction between “commercial” and “communicative” speech, noting that only for the latter do a defendant’s First Amendment protections outweigh the plaintiff’s right of publicity.  Pooley at 1113.  In Pooley, the court explained that when the use of an identity is “strictly to advertise a product or service,” the First Amendment does not protect that use.  In Pooley the court held that although the hole-in-one was a public event and news in its own right, the subsequent incorporation of the plaintiff’s identity into a promotional video was “strictly commercial.”  Pooley at 1114.  The court explained that the golfer’s identity was used in “the context of an advertisement,” and not “simply to communicate an idea.”  Moreover, the court was concerned that the video suggested, inaccurately, that the plaintiff was associated with the defendant.

Note that consent, which in some other states is considered an affirmative defense in right of publicity cases, relates to the plaintiff’s brden of proof in Arizona – see above.

A common-law right of publicity claim in Arizona is likely to be subject to the state's two-year statute of limitations for personal injury cases. A.R.S.  § 12-542. 

Damages and other remedies

In Pooley, the United States District Court for the District of Arizona suggests that injunctive relief and damages are both available to a plaintiff bringing a claim for right of publicity.  Pooley at 1111.

In Lemon, the United States District Court for the District of Arizona holds that “the plaintiff may recover the proportion of the defendant's net profits that is attributable to the unauthorized use,” and notes that is the defendant’s burden to demonstrate which sales are attributable to other factors and what expenses need be deducted from revenue.  Lemon at 1103.  However, the context implies that the court may view this as one way to calculate damages, and other techniques (such as the “fair market value” of a plaintiff’s identity) may be used as well.   Lemon at 1103. 

A group of plaintiffs bringing claims for infringement of their rights of publicity need to be able to show that they have each suffered individual damages.  In Lemon, the court declared a report calculating damages “irrelevant” because it presented total damages in a manner that could not be accurately broken out for each plaintiff, but allowed the suit to proceed because  other evidence provided a basis for determining what damages had been suffered by each plaintiff.  Lemon at 1103-1107.

THE STATUTORY RIGHT

Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians.  A.R.S. §§ 12-761, 13-3726.  § 12-761 recognizes a civil cause of action for infringement of the right of publicity for any soldier, alive or deceased, and § 13-3726 makes it a class 1 misdemeanor to infringe the right of publicity of a deceased soldier.

There are several exceptions listed in the statutes which are not considered violations of a soldier's right of publicity:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3 of this subsection.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise.

Publishers concerned that their activities may infringe on a soldier’s right of publicity should read the statutes and also review Frazier v. Boomsma, 07-CV-8040-PHX-NVW, 2008 WL 3982985 (D. Ariz. Aug. 20, 2008).  In Frazier, the United States District Court for the District of Arizona held that enforcing A.R.S. § 13-3726 against a man selling protest t-shirts with the names of dead soldiers would violate the First Amendment, and left open the possibility that the statute is unconstitutional on face.  

A.R.S. § 12-761 states that a soldier’s right of publicity survives death and lists (in order) who may then enforce that right. A.R.S. § 13-3726, as stated above, applies only to deceased soldiers.  Claims under A.R.S. § 12-761 must be brought within five years of the offending publication.

This page covers legal information specific to the State of California. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes. California has two systems of Right of Publicity law: a statute, and a common law right. 

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Generally speaking, the Right of Publicity protects a person's right in his or her name and likeness. California's statute, Cal. Civ. Code § 3344, protects a person's:

• name, 
• voice, 
• signature, 
• photograph, and 
• likeness.

The term “voice” applies only to a person’s actual voice, not to imitations. See Midler v. Ford, 849 F.2d 460, 463 (9th Cir. 1988). However, as noted below, the common law right of publicity might apply to voice imitators. 

The term “photograph” includes still or moving pictures, but the person in question must be “readily identifiable” (meaning someone could “reasonably determine” that the photo depicts the plaintiff). However, pictures of crowds, such as on public streets or at sporting events, do not run afoul of the statute as long as no people are “singled out as individuals” in the photo. § 3344(b)(3).

The term “likeness” is the most difficult of the five protected categories to precisely define. Courts have used the “readily identifiable” test to conclude that drawings, if sufficiently detailed, can constitute a “likeness.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 692-93 (9th Cir. 1998). In another case, the court ruled that a robot, if sufficiently detailed, could be a “likeness.” Wendt v. Host Intern., Inc., 125 F.3d 806, 810 (9th Cir. 1997). Less detailed robots, though, may fall short of the “likeness” mark. White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).

What Constitutes a Statutory Violation

California's statute protects against uses of a person's likeness for advertising purposes. Specifically, the statute prohibits “knowing” use of a person’s name/likeness/etc.,

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[.] (Cal. Civ. Code § 3344(a))

The mere fact that a person’s likeness is used in connection with a commercial product or service does not violate the statute. Rather, the statute focuses specifically on advertising uses of a person’s likeness:

[I]t shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required[.] (Cal. Civ. Code § 3344(e))

Courts have thus interpreted the statute to impose a three-step test:

1. Was there a “knowing” use of the plaintiff’s protected identity?  
2. Was the use for advertising purposes? 
3. Was there a direct connection between the use and the commercial purpose?

See, e.g., Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998). If the answer to all three questions is “yes,” then there has been a violation of the statute.

The statute also contains an explicit exception for uses “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” § 3344(d).

Rights of the Deceased

California has a separate statute protecting posthumous rights of publicity, found at Cal. Civ Code § 3344.1. The right lasts for 70 years after death, and is considered a freely transferable, licensable, descendible property right. The substance of the right is largely the same, with the following exceptions:

• The holder of a deceased person's right of publicity must register the claim with California's Secretary of State, and the rights-holder cannot recover damages for any use that occurs before registration. § 3344.1(f)(1).
• To qualify under the statute, the deceased person's right of publicity must have had "commercial value at the time of his or her death, or because of his or her death." § 3344.1(h).
• There is an exemption for any uses in a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value," or an advertisment for any of these works. § 3344.1(a)(2).

THE COMMON LAW RIGHT

The Traditional Four-Step Test

Courts generally describe California’s common-law right as a four-step test, in which a plaintiff must allege:

1. The defendant’s use of 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.

See White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).

What the Common Law Right Protects

Though the second prong of the standard four-step test mentions “name or likeness,” courts held that the common law right is actually much broader: the focus instead is on the term “identity.” See Abdul-Jabbar v. General Motors, 85 F.3d 407, 413-14 (9th Cir. 1996).

Courts have interpreted “identity” broadly, covering more uses than does the statutory right of publicity. For example, imitating someone’s voice is not a violation of the statute, but it may violate the common law right. See Waits v. Frito-Lay, 978 F.2d 1093, 1098-1100 (9th Cir. 1992). A picture of a distinctly-decorated race car can be a common-law violation, even if the driver himself is not visible. Motschenbacher v. R.J. Reynolds Tobacco, 498 F.2d 821, 827 (9th Cir. 1974). A robot can constitute a common-law violation, even if not sufficiently detailed to violate the statute. White v. Samsung, 971 F.2d 1395, 1397-99 (9th Cir. 1992).

What Constitutes a Violation of the Common Law Right

Unlike the statute, the common law right is not explicitly limited to commercial uses of a plaintiff’s identity. However, the “less commercial” a use, the more that First Amendment concerns come into play. (See section on First Amendment Limitations below.) Purely commercial speech, such as advertising, does nothing more “than propose a commercial transaction”; if a defendant’s use falls outside the realm of the purely commercial, California’s common law right of publicity is less likely to apply.

DAMAGES

A plaintiff can simultaneously pursue claims for violations of both the common law and the statute. Cal. Civ. Code § 3344(g). The statute entitles a victorious plaintiff to the “actual damages suffered,” as well any of the defendant’s profits that “are attributable to the use.” Punitive damages “may” be awarded under the statute; California law limits punitive damages to cases of “oppression, fraud, or malice.” Cal. Civ. Code § 3294. The winning side in a statutory case “shall” receive his/her attorney’s fees and costs.

Damages are not limited strictly to the financial harm suffered by a plaintiff. Courts may also take into account “injury to peace, happiness, and feelings,” as well as “injury to goodwill, professional standing, and future publicity value.” See Waits v. Frito-Lay, 978 F.2d 1093, 1102-03 (9th Cir. 1992).

LIMITATIONS ON BOTH THE STATUTORY AND COMMON LAW RIGHTS

Relationship with Copyright Law

A right of publicity claim (either statutory or under the common law) fails if it is too similar to a copyright claim; in such a case, the state right-of-publicity law is preempted by federal copyright law. For example, in Laws v. Sony Music, 294 F.Supp.2d 1160 (C.D. Cal. 2003), Sony licensed one of the plaintiff’s songs and sampled it in a new recording. The plaintiff tried to bring a right of publicity claim, but the court ruled that Sony’s use of a licensed recording fell under copyright law, thus preempting the state claim. Generally speaking, if the allegedly-infringing use of a person’s identity primarily involves use of copyrighted work, there is a chance that the state-law claim will be preempted.

First Amendment Limitations

The First Amendment also limits the extent to which rights of publicity can limit speech about matters of public interest. As one case put it, “[u]nder the First Amendment, a cause of action for appropriation of another’s name and likeness may not be maintained against expressive works, whether factual or fictional.” Daly v. Viacom, 238 F. Supp. 2d. 1118, 1123 (N.D. Cal. 2002).

As mentioned above, the California statute contains exceptions for uses related to news, public affairs, sports, and politics. Courts often focus on this statutory safe harbor, instead of the First Amendment directly, when confronting statutory right-of-publicity claims. See, e.g., Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 415-17 (Cal. Ct. App. 2001).

The First Amendment is more often directly relevant in common law right of publicity cases, since there is no statutory safe harbor. But since cases often involve both common law and statutory claims, the First Amendment analyses often cover both the statute and the common law. For example, in Daly v. Viacom, the court ruled that use of the plaintiff’s likeness in advertisements for a television show, using footage from the show in which the plaintiff appeared, was protected as part of an expressive work. That case involved both common law and statutory claims.

The 9th Circuit has suggested that cases involving "noncommercial" uses (meaning, the use contains some expression and does not "simply advance a commercial message") receive heightened First Amendment scrutiny. If the plaintiff is a public figure, he/she "can recover damages for noncommercial speech from a media organization . . . only by proving 'actual malice' " in so far as the noncommercial use was "intended to create [a] false impression in the minds of [the] readers." Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186-87 (9th Cir. 2001). The full extent of the "actual malice" standard's applicability in right of publicity cases remains unclear, however.

Statute of Limitations

Both the statutory and common law right of publicity claims are subject to a two-year statute of limitations. Christoff v. Nestle USA, Inc., 213 P.3d 132, 135 (Cal. 2009). The Ninth Circuit has held that, for material appearing on a website, the statute is not retriggered every time aspects of the website are amended or revised; rather, the statute is only retriggered if "the statement itself is substantively altered or added to, or the website is directed to a new audience." Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012).

This page covers legal information specific to the District of Columbia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Washington D.C. courts recognize a common law claim for misappropriation of another's name or likeness. D.C. courts do not distinguish between right of publicity and misappropriation but merge the two under a claim for misappropriation. D.C. has no corresponding statute.

THE COMMON LAW RIGHT

What the Common Law Right Protects

Washington D.C. has adopted the Restatement (Second) of Torts § 652C for a claim of misappropriation/right of publicity, which provides that "[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."

The required elements for a misappropriation claim are:

1. An unauthorized use of the plaintiff's identity or persona, that is
2. For the use or benefit of the defendant.

Evidence that the defendant profited from the unauthorized use of the plaintiff's name or likeness is insufficient to prove liability in a misappropriation action. Instead, the plaintiff must prove not only that the defendant derived a benefit from the plaintiff's identify but also that there is a public interest or other value in that name or likeness. If there is no recognizable value associated with the name or likeness of the plaintiff, a misappropriation claim will fail. In Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985), a plastic surgeon displayed "before and after" photographs of a patient's face. While the photos were on display for the public, the court held that a claim for misappropriation failed because the patient's identity was not revealed and because the patient did not prove that there was public interest or other value in her face or likeness.

However, a misappropriation claim may succeed even if the plaintiff's name or likeness does not have specific commercial value, if it nevertheless has some other kind of "value" that the defendant has turned to his own benefits and purposes. Tripp v. United States, 257 F. Supp. 2d 37, 43 (D.D.C. 2003) (finding that plaintiff's notoreity might have "value" for certain purposes).

In Polsby v. Spruill, 1997 U.S. Dist. LEXIS 11621 (D.D.C. Aug. 1, 1997), the plaintiff claimed that an author had based a main character in his novel on the plaintiff's life. The court ruled that the plaintiff had failed to meet her burden of proof because she had presented no evidence that the defendant knew her or knew about her prior to outlining his novel and because there were more differences than similarities between the plaintiff's life and the novel's main character's life.

Damages

In D.C., there are no cases interpreting damages for a misappropriation claim. If D.C. considers a misappropriation claim to be based on a privacy interest, damages may resemble those awarded for public disclosure of private facts. These may include general damages, special damages, or punitive damages.

General damages may be available to a plaintiff who has suffered emotional distress or personal humiliation if his private life is given publicity. Vassialiades, 492 A.2d at 594. Such damages are available only if such distress or humiliation would normally occur after an invasion on that individual's privacy. The harm also has to be of a normal and reasonable extent.

Special damages for a claim of invasion of privacy may include harm to a plaintiff's commercial interests. In Black v. United States, 389 F. Supp. 529, 538 (D.D.C. 1975), the plaintiff successfully recovered special damages on a publication of private facts claim after the FBI electronically eavesdropped and passed information to the Department of Justice.

Punitive damages are meant to punish for an invasion of privacy when a person's conduct is "malicious, wanton, reckless, or in willful disregard for another's rights." Vassialiades, 492 A.2d at 593. Courts are reluctant to award punitive damages; a high burden is placed on the plaintiff to show that punitive damages are supported by "evidence of record and the law." Id. at 593.

Limitations and Defenses

There are two First Amendment defenses that the D.C. courts recognize to a misappropriation claim: the newsworthiness privilege and the incidental use privilege.

The newsworthiness privilege applies to "advertisements for books, films, and other publications concerning matters of public interest." Lane v. Random House, 985 F. Supp 141, 146 (D.D.C. 1995). If a person's identity or likeness has "no real relationship" to the publication at issue, the newsworthiness privilege will fail.

The incidental use privilege protects against liability when an individual's name or likeness is used in connection with that person's public activities. Under this privilege, a person's likeness "is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities." Lane, 985 F. Supp at 147 (quoting Restatement (Second) of Torts § 652C, comment d (1977)). Further, incidental use "for a purpose other than taking advantage of a person's reputation or the value associated with his name will not result in actionable appropriation." Vassiliades, 492 A.2d at 592. In Klein v. McGraw-Hill, 263 F. Supp. 919 (D.D.C. 1966). the plaintiff became a public figure by making advances in the field of photography; the defendant publisher used the plaintiff's name and photograph in a book sold for profit. The court held that such use was incidental in light of the plaintiff's public activities.

Statute of Limitations

Under D.C. Code § 12-301, there is no specific statute of limitations for a misappropriation claim. The general statute of limitations is 3 years. D.C. Code § 12-301(8). If misappropriation is asserted in connection with another claim based on the same facts for which there is a prescribed statute of limitations, the court will likely apply that statute of limitations to the misappropriation claim. Mittleman v. United States, 104 F.3d 410 (D.C. Cir. 1997).

This page covers legal information specific to the State of Florida. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the right of publicity in Florida protects against unauthorized uses of a person's name or likeness for commercial purposes. Florida has two systems of rights of publicity: a statute, and a common law right.

Florida codifies its statutory right of publicity, treated primarily as a property right, at Section 540.08, with which you should familiarize yourself. Florida also recognizes a common law right of publicity under a right of privacy.

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Florida's statutory right of publicity creates a property right held by an individual in his or her name and likeness. See Loft v. Fuller, 408 So.2d 619 (Fla. Dist. Ct. App. 1981). Florida's statute, Fla. Stat. Ann. § 540.08, protects a person's:

• name
• portrait
• photograph, and
• likeness.

The term "photograph" includes still or moving pictures or reproductions of an individual. See Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); see also Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Badillo v. Playboy Entm't Group, Inc., 2006 WL 785707 (M.D. Fla. Mar. 28, 2006). The individual must be identifiable in the photograph, and not merely a member of the public who is unnamed and not otherwise identified in connection with the use of the photograph. Fla. Stat. Ann. § 540.08(4)(c).

This statute and its interpretations by Florida courts have not formally recognized the protection of an individual's voice, though it is possible that "likeness" would include this. See Neva, Inc. v. Christian Duplications Int'l, Inc.,  743 F. Supp. 1533 (M.D. Fla. 1990) (suggesting that an actor's voice in a recording might be within the scope of § 540.08).

What Constitutes a Statutory Violation

Florida's statute protects against unauthorized commercial uses of an individual's name or likeness. Specifically, the statute provides that,

"No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without ... express written or oral consent."

Fla. Stat. Ann. § 540.08(1).

In Tyne v. Time Warner Entertainment Co., the Florida Supreme Court held that to find a violation of the right of publicity statute, the use must be for the defendant's benefit and done to promote a product or service, not merely for expressive purposes. See Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); see also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983). 

Simply using a person's likeness in connection with a commercial product or service does not violate the statute. Rather, the statute is designed to "prevent the unauthorized use of a name to directly promote the product or service of the publisher." Tyne v. Time Warner Entm't Co., L.P., 901 So.2d 802 (Fla. 2005); see also Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). Inclusion in a product sold for profit is insufficient to constitute an unauthorized use under this statute, as there must be a demonstration the association of the name with the product is valuable and exploitative. See Valentine v. C.B.S., Inc., 698 F.2d 430 (11th Cir. 1983); Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 1255 (S.D. Fla. 2010); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). The publication or printing of a product for advertising purposes has been found sufficient to constitute a statutory violation, even when there was no distribution. Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 2004).

Florida's statute also contains exceptions for news media and prior consent, including:

• news media including newspapers, magazines, books, broadcasts, news reports, or presentations having a legitimate public interest and the use is not for advertising purposes, and
• publications connected with the resale or other distribution of literary, musical, or artistic productions or other property where the person has consented to the use of their likeness with the initial sale or distribution.

Fla. Stat. Ann. § 540.08(4).

Florida has also recognized Section 47 of the Restatement (Third) of Unfair Competition, finding exceptions for uses including "news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses." See Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d 1352 (N.D. Fla. 2010); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005).

Rights of the Deceased

Florida provides that this right of publicity lasts for 40 years after the death of the individual, and is considered a freely transferable, licensable, descendible property right. The substance of the right is the same before and after death.

Any person, firm or corporation may be authorized in writing to license the commercial use of an individual's name or likeness. Fla. Stat. Ann. § 540.08(1). If no such entity is authorized in writing, then the right belongs to the individual's surviving spouse and children. Fla. Stat. Ann. § 540.08(1). An individual's spouse is determined by the domicile's law the time of the individual's death, regardless of the spouse's later remarriage. Children includes immediate offspring as well children legally adopted by the individual. Fla. Stat. Ann. § 540.08(6).

THE COMMON LAW RIGHT

What the Common Law Right Protects

In Florida, the common law right of publicity, including the right not to have a person's name published without his or her consent, was first recognized as part of a right of privacy. See Cason v. Baskin, 20 So. 2d 243 (Fla. 1944); see also Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).

The common law right of publicity extends to any individual whose name or likeness has been exploited through unauthorized use during his or her lifetime. See Gridiron.com v. National Football League Player's Ass'n, 106 F. Supp. 2d 1309 (S.D. Fla. 2000); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). The common law right is meant to protect the privacy and integrity of an individual's name and likeness, because "Nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it." Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).

Like the statutory right, the common law right of publicity recognizes exceptions for news reporting and for authorized publishers and distributors of a work to use an individual's name to truthfully identify the work's creator. See Zim v. Western Publishing Co., 573 F.2d 1318 (5th Cir. 1978); Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955). 

What Constitutes a Violation of the Common Law Right

As with the statutory right of publicity, a violation of the common law right of publicity is found when an individual's name or likeness is used without his or her consent for the benefit its value would confer on the defendant. See Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996); see also Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994).

DAMAGES

As the right of publicity has been formally recognized by statute in Florida, decisions generally cite the statutory right over the common law right. See Facchina v. Mutual Benefits Corp., 735 So. 2d 499 (Fla. 4th Dist. Ct. App. 1999). However, the statutory right does not displace common law rights, so a plaintiff can simultaneously pursue claims under both the statute and common law. See Fla. Stat. Ann. § 540.08(6).

Under the common law right of publicity, a plaintiff may be awarded nominal damages for the unauthorized use of his or her name without proving actual harm or damage. See Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir.1978); see also Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).

Under Florida's right of publicity statute, a plaintiff may bring an action for an injunction and to recover damages to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages." Fla. Stat. Ann. § 540.08(2). A victorious plaintiff may receive prejudment interest on the damages awarded. See Bosem v. Musa Holdings, 46 So. 3d 42 (Fla. 2010).

LIMITATIONS AND DEFENSES

Both the common law and statutory rights of publicity recognize consent as a defense when the individual consents to the use of his or her name or likeness. See v. Anheuser Busch, Inc., 348 F. App'x 547 (11th Cir. 2009); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).

In addition, all right of publicity claims are limited by the First Amendment. See Valentine v. CBS, Inc. 698 F.2d 430 (11th Cir. 1983); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). As discussed above, the statutory right of publicity includes a safe harbor for press coverage of legitimate public interest at § 540.08(4) and the common law recognizes similar protection of news reporters. See Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955).

The common law and statutory rights of publicity are subject to a four-year statute of limitations under Florida's general statute for claims whose limitations period is not specifically enumerated in other statutes. Fla. Stat. Ann. § 95.11.

This page covers legal information specific to the State of Georgia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Georgia's courts have developed a common law right of publicity. The state has no corresponding statute. Various court decisions refer to the "right of publicity," "misappropriation of likeness," and similar terms. The Supreme Court of Georgia's 1982 decision in Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc. is a good place to begin; you should familiarize yourself with that case.

What is protected?

Georgia's right of publicity protects a person's name and likeness. A few relevant appellate court decisions help contextualize "name and likeness." In King v. Heritage Products, the Georgia Supreme Court held:

[T]he appropriation of another's name and likeness, whether such likeness be a photograph or sculpture, without consent and for financial gain of the appropriator is a tort in Georgia.

King, 296 S.E. 2d 697, 703 (citations removed). In King, the defendants were producing and selling plastic busts of Dr. Martin Luther King, Jr., without the consent of Dr. King's estate. The Georgia Supreme Court held that conduct was a violation of Dr. King's right of publicity, which could be enforced by his estate.

In an earlier case, Cabaniss v. Hipsley, 151 S.E. 2d 496 (Ga. Ct. App. 1966), the Georgia Court of Appeals recognized the right of publicity as a part of the more general right to privacy. The Cabaniss court ruled that the unauthorized use of the plaintiff's photograph in an advertisement for the Atlanta Playboy Club violated the plaintiff's right of publicity, even if the photograph was published by mistake.

Most right of publicity cases in Georgia have involved photographs (as in Cabaniss) or obvious likenesses (as in the King busts). But as a common law doctrine, Georgia's right of publicity is not necessarily limited strictly to these categories. The state's courts could continue to expand the meaning of "name and likeness" in subsequent cases. In 2009, the U.S. Court of Appeals for the Eleventh Circuit (the federal judicial circuit in which Georgia is located) cited California's right of publicity law with approval in Toffoloni v. LFP Publishing, 572 F. 3d 1201, 1208 n.2 (11th Cir. 2009), so other states' right of publicity doctrine might be persuasive in Georgia courts.

Right of deceased persons

In King, the Georgia Supreme Court held that the right of publicity survives death, can be enforced by the deceased's estate, and is fully inheritable and devisable. The court did not specify the duration of the posthumous right of publicity, and to date no other court decision has dealt with the question of when (or if) the right expires.

What constitutes a violation?

Georgia's right of publicity protects against unauthorized uses of a person's identity "for financial gain." The King defendant's sale of plastic busts was considered commercial, as was the advertising use in Cabaniss. In Alonso v. Parfet, the Georgia Supreme Court further ruled that use of a person's name on "various forms and documents" used in the course of business could establish a violation. 325 S.E. 2d 152 (Ga. 1985).

But Georgia's right of publicity is limited by "newsworthiness." In the 1956 case Waters v. Fleetwood, the Georgia Supreme Court stated that

where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy.

91 S.E. 2d 344, 348. Though Waters focuses on the "right of privacy," courts have used the newsworthiness test in right of publicity cases. In Toffoloni, the Eleventh Circuit summarized the test as follows:

[W]here a publisher may be precluded by the right of publicity from publishing one's image for purely financial gain, as in an advertisement, where the publication is newsworthy, the right of publicity gives way to freedom of the press.

There is no clear test for determining what qualifies as "a matter of public interest," but with respect to this question the Eleventh Circuit has pointed to California case law as instructive, ruling that the use of the plaintiff's identity must be actually related to the incident or issue with which the public is concerned. Therefore, the Toffoloni defendants were held liable for publishing previously-taken nude photographs of a recent murder victim; the Eleventh Circuit ruled that the photographs "were in no conceivable way related" to the newsworthy event (the murder). In contrast, the Waters defendants were protected from liability when they published photographs of a murder victim's corpse, because those photographs were related to the matter of public interest. Therefore there must be some kind of reasonable connection between the newsworthy event and the use.

Remedies

Money damages are limited to "the value of the use of the appropriated publicity." Toffoloni, at 1206. Georgia treats the right of publicity as a "proprietary" right, meaning general damages for claims such as emotional distress are not available. (Other privacy-related torts, if applicable, might allow for collection of general damages.)

Injunctive relief is available to plaintiffs. Punitive damages may also be available, if there is evidence of "wrongdoing, fault, wrongful motive or state of mind" on the defendant's part. Cabaniss, at 508.

Statute of limitations

Georgia's right of publicity claim is subject to a two-year statute of limitations for personal injury claims. Rivell v. Private Health Care Sys., Inc., 887 F. Supp. 2d 1277, 1284 (S.D. Ga. 2012) (citing O.C.G. § 9-3-33).

This page covers legal information specific to the State of Illinois. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Illinois' right of publicity statute, the Right of Publicity Act, is codified at 765 ILCS 1075. You should familiarize yourself with the statute, especially sections 5 (which defines the key terms of the statute) and 35 (which lists the primary exceptions to the right of publicity). Illinois no longer recognizes a distinct common law right of publicity.

What is protected?

The Right of Publicity Act, at § 30, protects "an individual's identity."

Section 5 defines the key terms. An "individual" is defined as a "natural person," meaning that the Right of Publicity act does not protect the names of businesses or other legal entities.

The statute defines "identity" broadly:

"Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.

At least one federal district court has noted that the Act's definition of "identity" is broad and promotes "an expansive approach" when deciding what counts as identity. Muzikowski v. Paramount Pictures Corp, 2003 WL 22872117, at *6 (N.D. Ill., Dec. 3, 2003) (not reported). While there does not appear to be appellate case law on the subject, the statute's definition of "identity" suggests a two-step approach:

1. Did the defendant use an "attribute" of the plaintiff? 
2. Would that attribute "identify" the plaintiff to an ordinary, reasonable person?

Section 5 of the Act also defines "name," one of the listed attributes that can constitute "identity." The statute protects an individual's "actual name," as well as any "other name by which an individual is known that is intended to identify that individual." This would appear to provide protection to assumed names, stage names, and the like, as long as the individual is sufficiently "known" by that name.

Rights of deceased persons

Section 30(b) of the Right of Publicity Act protects an individual's identity for 50 years after death, if the person died after the date the statute went into effect. The Right of Publicity Act went into effect on January 1, 1999. Illinois' earlier common law right of publicity did not provide protection after death. Carlson v. Del Pub. Co., 213 N.E. 2d 39 (Ill. App. Ct. 1965). Therefore, the identities of people who died before 1999 are unprotected in Illinois.

What constitutes a violation?

The Right of Publicity Act protects against unauthorized "commercial" uses of an individual's identity. Section 5 defines use for a "commercial purpose" as a "public use" for the purpose of: (i) offering the sale of products, services, etc. (ii) advertising or promoting products, services, etc.; or (iii) fundraising.

Use of a person's identity in private documents, even if used for a commercial purpose, is not "public" and is not a violation of the Act. See MetLife v. Seldman, 734 F. Supp. 2d 304, 311-12 (E.D.N.Y. 2010).

Most of what qualifies as a "commercial" use is intuitive. Using a person's picture on product packaging, Leto v. RCA Corp., 341 F. Supp. 2d 1001 (N.D.Ill. 2004), and using a person's image to falsely imply endorsement of a product, Trudeau v. Lanoue, 2006 WL 516579 (N.D. Ill. March 2, 2006) (not reported) have both been found to be "commercial." If the use is tied to advertising, it risks right-of-publicity liability.

One federal district court has noted the differences between protection for commercial and non-commercial speech under the First Amendment, in connection with the question of whether First Amendment protection for non-commercial speech would trump the Right of Publicity Act.  Jordan v. Jewel Food Stores, Inc., 2012 WL 512584 (N.D. Ill. February 15, 2012). It is not clear from the decision, however, whether the judge connected the statutory definition of commercial use under the Right of Publicity Act to the constitutional concept of commercial speech.

Exceptions and the First Amendment

The Right of Publicity Act contains a number of specified exceptions designed to protect First Amendment interests. Specifically, § 35(b) lists five exceptions:

1. Using a person's identity to portray that person in a work of art (such as a painting, play, movie, song, etc.) is protected, as long as the work of art is not "in and of itself a commercial advertisement."
2. Uses for non-commercial purposes are exempt. This exception includes news reports, sports, public affairs, and political campaigns.
3. The statute allows use of an author's name in connection with her work (but only if the use is truthful).
4. Advertisements for any of the above exceptions are also exempt. Therefore, even though an advertisement is "commercial," if it is advertising an exempted use (such as a billboard for a protected film) there is no violation of the right of publicity.
5. There is also an exception for professional photographers, to allow them to display their work at their place of business.

Courts have described these various exceptions as important protections for First Amendment rights. See, e.g., Collier v. Murphy, 2003 WL 1606637 (N.D. Ill. March 26, 2003) (not reported). However, these exceptions do not define the limit of First Amendment protection; conduct that falls outside of the statutory exceptions may still be constitutionally protected. In Christianson v. Henry Holt and Co., 2007 WL 2680822 (C.D. Ill. June 29, 2007) (not reported), the defendants used a picture of the plaintiff on a book jacket, even though the plaintiff was not a subject of the book. The district court ruled that the defendants' conduct did not fall under the first or second exceptions listed above, because the plaintiff was not portrayed, or even mentioned, in the book. But the court then stated that "the fact that Plaintiff's claim does not fit within one of the elucidated exception[s] to the [Right of Publicity Act] does not end the inquiry," and went on to consider whether the use of the plaintiff's image was protected by the First Amendment as an expressive choice in the context of the book. Although the court eventually ruled against the defendants on this issue, finding no link between the subject of the book and the plaintiff's picture, the court's analysis indicates that a separate First Amendment defense may exist for some expressive uses of an individual's image.

Remedies

Section 40 of the Act provides from monetary relief. A victorious plaintiff can collect both their actual damages and the defendant's profits that result from the violation. The minimum monetary award is $1,000. A plaintiff can claim both "personal" damages and "commercial" damages. See Villalovos v. Sundance Associates, 31 Media L. Rep. 1274, 2003 WL 115243, at *5 (N.D. Ill. January 13, 2003). Punitive damages are also available for willful violations.

Section 50 allows courts to issue "appropriate" injunctive relief. The court can also, in its discretion, award the winning side attorney's fees and court costs. See § 55.

Statute of limitations

Right of publicity claims under the Illinois statute are subject to a one-year statute of limitations. Blair v. Nevada Landing P'ship, 859 N.E.2d 1188, 1192 (Ill. App. 2d Dist. 2006).

This page covers legal information specific to the State of Indiana. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Indiana has two systems of right of publicity law: a statutory right protecting a property interest, and a common law privacy right.

Indiana codifies its statutory right of publicity in Ind. Code § 32-36-1. You should first familiarize yourself with the statute.

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Indiana’s statutory right of publicity is found under Indiana Code Title 32, Section 36-1. The statute defines “right of publicity” as a property interest belonging to a “personality.” Under the Indiana statute, a “personality” is a living or deceased natural person (not a corporation or other legal entity) who possesses specific qualities with commercial value.  Specifically, the statute protects a personality’s:

• name,
• voice,
• signature,
• photograph,
• image,
• likeness,
• distinctive appearance,
• gestures, and
• mannerisms.

Ind. Code § 32-36-1-6. 

Indiana’s right of publicity statute protects against the use of these protected aspects “for a commercial purpose” during the  personality’s lifetime and after death. The right of publicity lasts for 100 years after the death of the individual and applies to those who died before the statute’s enactment in 1994. 

The statute defines “commercial purpose” as the use of an aspect of a personality’s right of publicity in any of the following ways:

• on or in connection with a product, merchandise, goods, services, or commercial activities.
• for advertising or soliciting purchases of products, merchandise, goods, services, or for promoting commercial activities.
• for the purpose of fundraising.

Ind. Code § 32-36-1-2. 

The term “name” means “the actual or assumed name of a living or deceased natural person that is intended to identify the person.” Ind. Code § 32-36-1-3. As a result, the statute would apply to performers’ stage names as well as their birth names.

Who Can Exercise the Statutory Right of Publicity? 

As property rights, a personality’s rights of publicity recognized under Indiana’s statute are freely transferable and descendible, in whole or in part, by:

• contract,
• license,
• gift,
• trust,
• testamentary document, or
• operation of the applicable state laws of intestate succession.

Ind. Code § 32-36-1-16. If, after death, a personality’s rights have not been transferred by one of the above means and he or she has no survivors, any rights that have not been vested are terminated. A personality or a person to whom the recognized rights of a personality have been transferred may bring action under the statute. Ind. Code § 32-36-1-17.

What Constitutes a Statutory Violation?

The statute only applies to “an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship.” Ind. Code § 32-36-1-1. A claim for a violation can be asserted only if the alleged act or event of violation occurred after June 30, 1994. A person, partnership, firm, corporation or an unincorporated association violates Indiana’s right of publicity statute when it:

• without written consent, uses an aspect of a personality’s right of publicity for a commercial purpose in Indiana;
• creates or causes the creation in Indiana of goods, merchandise, or other materials prohibited under the statute;
• transports or causes to be transported into Indiana goods, merchandise, or other materials created or used in violation of the statute; or
• knowingly causes advertising or promotional material created or used in violation of the statute to be published, distributed, exhibited, or disseminated within Indiana.

THE COMMON LAW RIGHT

What the Common Law Right Protects

Indiana common law recognizes an invasion of privacy claim for misappropriation of an individual’s name or likeness, with the Indiana Supreme Court noting that the tort focuses on an individual’s right to be left alone. Doe v. Methodist Hospital, 690 N.E.2d 681, 684 (Ind. 1997). A person’s name or likeness “embraces the concept of a person's character, which is legally protected against appropriation by another for his own use or benefit.” Felsher v. University of Evansville, 755 N.E.2d 589, 601 (Ind. 2001). For these reasons, a person can likely assert the common law right without evidence that their name, etc., has any particular commercial value.

In Doe, the Court defined the tort of invasion of privacy as the “unwarranted appropriation or exploitation of one's personality . . . in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilit[ies].” Doe, 690 N.E.2d at 685–6. 

Although “an appropriation claim involves a privacy issue in the nature of a property right,” because the tort protects a right of privacy, this cause of action cannot be brought by a corporation. Felsher, 755 N.E.2d at 593–4. 

What Constitutes a Violation of the Common Law Right?

Indiana courts have adopted the elements for misappropriation from the Restatement (Second) of Torts. Therefore, “an appropriation and use of a plaintiff’s name or likeness occurs whenever the defendant ‘makes use of the plaintiff's name or likeness for his own purposes or benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.’” Felsher v. University of Evansville, 727 N.E.2d 783 (Ind. Ct. App. 2000) (rev’d on other grounds) (quoting Restatement (Second) of Torts § 652I cmt. B (1977)).

In Felsher, the Indiana Supreme Court found that a professor had misappropriated the names and likenesses of the University of Evansville and university employees when he created websites and email addresses containing the plaintiffs’ names and used them “for the sole purpose of harming the [plaintiffs’] reputation[s].” 755 N.E.2d at 597. The Court held that the misappropriation was for the professor’s benefit because it “enabled him to pursue a personal vendetta.” Id. at 600. The Indiana Appeals Court has also noted that the unauthorized use of photographs of a person for commercial purposes is generally actionable as an invasion of privacy. Continental Optical Co v. Reed, 86 N.E.2d 306 (Ind. Ct. App. 1949).

DAMAGES

Statutory

For claims brought under Indiana’s statutory right of publicity, the statute provides for the following remedies, with some exceptions for news and entertainment media:

• actual damages that include profits stemming from the unauthorized use or $1,000, whichever is greater;
• treble or punitive damages for knowing, willful or intentional violations;
• reasonable attorney’s fees, costs and expenses;
• temporary or permanent injunctive relief; and
• impoundment, destruction or other disposition of violating goods or items from which violating goods could be reproduced or manufactured. 

Indiana’s statute explicitly states that the above remedies are supplemental to any other remedies provided by law. Ind. Code § 32-36-1-20.

Common Law

Under Indiana law, damages for an invasion of privacy claim can include, but are not confined to, “compensation for the embarrassment, humiliation and mental pain [that] a person of ordinary sensibilities would have suffered under the circumstances.” Continental Optical, 86 N.E.2d at 309. Indiana law also allows for special damages that naturally flow from the tort as well as injunctive relief. Id. at 309–10; Felsher, 755 N.E.2d at 599–601.

LIMITATIONS AND DEFENSES

Statutory

Indiana’s right of publicity statute explicitly states that it “does not affect rights and privileges recognized under any other law that apply to a news reporting or an entertainment medium,” such as free speech privileges. The statute further states that its use prohibitions do not apply to uses in any of the following:

• literary works, theatrical works, musical compositions, film, radio, or television programs.
• material that has political or newsworthy value;
• original works of fine art;
• advertisements for a news reporting or an entertainment medium that uses at least part of the medium’s own past edition and does not suggest that a personality endorses that medium; or
• advertisements for the above uses.

The statute also does not apply to the use of:

• a personality’s name to truthfully identify that personality as an author or performer in a rightfully reproduced, exhibited or broadcast work;
• a protected aspect as related to public interest; or
• a protected aspect if that aspect has commercial value only because of the personality’s criminal charge or conviction.

Ind. Code § 32-36-1-1.

Common Law

In Time, Inc. v. Sand Creek Partners, L.P., a federal district court stated that “[i]n general, when a person's picture is used to illustrate a non-commercial, newsworthy article, his interest in the use of his likeness or image must be evaluated in light of constitutional interests found in the First Amendment.” 825 F. Supp. 210, 212 (S.D. Ind. 1993). In Time, after broadly construing “newsworthiness,” the court held that the photographs of two widely known celebrities on their wedding way illustrated a newsworthy event of widespread public interest; therefore, the newsworthiness that the images depicted outweighed any privacy rights of the celebrities. Id. at 212–13.

The Indiana Appeals Court recognized that the right of privacy can be waived. Continental Optical, 86 N.E.2d at 309. In Continental Optical, the court noted that the right is waived by consent, either express or implied, and may also be relinquished by an individual who “enters a business or calling which gives the public a legitimate interest in his character, activities and affairs.” Id.

STATUTE OF LIMITATIONS

A common law claim for misappropriation is subject to a two-year statute of limitations. Ind. Code § 34-11-2-4 (stating that an action for injury to person or character must be brought within two years); Johnson v. Blackwell, 885 N.E.2d 25 (Ind. Ct. App. 2008) (applying a two-year statute of limitations to an invasion of privacy claim). A two-year statute of limitations would also likely apply to statutory right of publicity claims. Ind. Code § 34-11-2-4 (stating that an action for injury to personal property must be brought within two years).

This page covers legal information specific to the State of Massachusetts. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Massachusetts codifies its Right of Publicity law at Chapter 214, § 3A of the General Laws. You should first familiarize yourself with that statute. Massachusetts does not recognize a separate common law right of publicity.

What is protected?

Section 3A protects a person's "name, portrait or picture". There is a paucity of cases specifying the precise limits of this phrase; in other contexts, however, courts have acknowledged that the Massachusetts statute is very similar to New York's. See, e.g., Old Colony Donuts, Inc. v. American Broadcasting Companies, Inc., 368 F. Supp. 785, 788-89 (D. Mass. 1974). Thus, New York cases interpreting these terms may be persuasive to Massachusetts courts.

Rights of deceased persons

Massachusetts has no appellate case law on this point. However, at least one Massachusetts trial court has ruled that the right of publicity only applies to living persons. Hanna v. Ken's Foods, Inc., 2007 WL 1695311, at *1 n. 4 (Mass. App. Ct., June 12, 2007) (unpublished opinion) (noting that the trial court dismissed plaintiff's § 3A claim on living-persons ground that plaintiff was not a living person, and that the issue was not appealed).

What constitutes a violation?

To violate § 3A, a use of a person's identity must be:

• within Massachusetts; 
• for advertising or trade purposes; and 
• without written consent.

The statute focuses on a person's "interest in not having the commercial value of one's name, portrait or picture appropriated for the benefit of another." Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749 (1980). Thus, courts applying § 3A look to whether the defendant's actions exploited the value of the plaintiff's identity.

Section 3A contains some specific exceptions. One gives added protection to professional photographers: photographers may exhibit their photographs at their "establishment," until the subject of the photograph provides written notice. If the photographer continues to display the subject's photograph after receiving such notice, the photographer may be liable for violating § 3A. Other statutory exceptions include the right to use an author's name in connection with her work, and the right to use a person's identity to sell goods, if that person uses her identity in connection with the manufacture or distribution of those goods.

In practice, the primary limit on the right of publicity is known as "incidental use." If the defendant's use of a person's identity is only incidental to other purposes, and not intended to profit off of the person's "reputation, prestige, or other value," there is no violation of § 3A. Id. In Tropeano, the seminal Massachusetts Supreme Judicial Court case establishing the "incidental use" standard, the defendant magazine used a picture of several people (including the plaintiff) to illustrate a news story. The story was not an advertisement of any kind, and there was no evidence that the defendants intended to profit from the plaintiff's identity (notably, the plaintiff was not identified in the photograph). Thus, the use of the plaintiff's photo was "incidental," regardless of the magazine's profit-seeking motive.

A number of trial courts, both state and federal, have used Tropeano's incidental use test to dismiss claims that arise from various news stories and other non-advertising purposes. See, e.g., Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004), aff'd sub nom., Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005) (dismissing § 3A claim arising from photo & caption in book); Morrell v. Forbes, Inc., 603 F. Supp. 1305 (D. Mass. 1985) (dismissing § 3A claim arising from photo in news magazine).

In deciding how broadly to construe the "advertising or trade" language, Massachusetts courts have been skeptical of analogies to New York case law. Massachusetts's statute does not apply to "peace of mind"-type privacy harms; the focus is strictly on the commercial value of a person's identity, and whether the defendant has appropriated that value. This is arguably distinct from New York's statute, which is codified under a broader "right of privacy." Tropeano, 379 Mass. at 748-49. Thus, while (as mentioned above) New York cases may be persuasive to Massachusetts courts in some circumstances (such as defining "name, portrait or picture"), New York analogies for interpreting "advertising or trade" may be less useful.

Damages

Section 3A provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. If a plaintiff is able to show the necessary commercial use of her identity (see above), the damage award may include compensation for "mental distress." See Polich v. Rafferty, 1997 WL 89152, at *10 (Mass. Super. Ct., February 10, 1997) (unreported).

Section 3A also states that if the defendant "knowingly" used the plaintiff's protected identity, the trial court has discretion to award treble damages.

Statute of limitations

Right of publicity claims in Massachusetts are subject to a three-year statute of limitations. Mass. Gen. Laws c. 260, § 2A.

This page covers legal information specific to the State of Michigan. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Although no state appellate court in Michigan has yet explicitly recognized a common law right of publicity, the U.S. Court of Appeals for the Sixth Circuit has opined that such a right would be recognized under Michigan law. In addition, Michigan's state appellate courts have recognized comparable protection in the nature of a property right under its "appropriation" tort. The state has no corresponding statute.

Publications and political organizations concerned about infringing on a plaintiff's right of publicity should note that state appellate courts have interpreted the First Amendment to protect a broad range of speech from appropriation claims. For more detail, consult the First Amendment section below.

What is protected?

The Sixth Circuit has suggested that Michigan would recognize a right of publicity to protect a person's ‘identity' in addition to their name and likeness. It would therefore be possible to violate Michigan's common law right of publicity without employing a person's photo or name. In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the U.S. Court of Appeals for the Sixth Circuit held that the use of an identifying catchphrase ("Here's Johnny") by a portable toilet company was enough to constitute an appropriation of Johnny Carson's identity under Michigan law. In fact, the court in Carson noted that the use of Johnny Carson's full name, John William Carson, would not have infringed on his right of publicity as it is distinct from his identity as celebrity.

In Battaglieri v. Mackinac Ctr. for Pub. Policy, 261 Mich. App. 296 (2004), the Court of Appeals of Michigan explained that under Michigan's tort of appropriation, "any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another."

What constitutes a violation of the common law right of publicity?

The U.S. Court of Appeals for the Sixth Circuit has suggested that Michigan would use a two part test to determine whether or not a violation of the right of publicity has occurred, in which the plaintiff must demonstrate:

1. "A pecuniary interest in her identity"
2. "That her identity has been commercially exploited by a defendant"

Parks v. LaFace Records, 329 F.3d 437, 460 (6th Cir. 2003). In Parks, civil rights hero Rosa Parks brought suit against the rap group Outkast for using her name in a song title. The court held that her claim passed both prongs of the test, because she had used her name in the past for promotional purposes, and because Outkast used her name to sell records.

It is unclear how meaningful the requirement of the first prong is. Some cases suggest it may bar a non-celebrity from bringing suit. In Edwards v. Church of God in Christ, No. 220348, 2002 WL 393577 (Mich. App. 2002), the Court of Appeals of Michigan held that "no cognizable tort for negligent misappropriation of an unknown singer's voice exists in Michigan." The scope of this holding is ambiguous, but it at least raises the possibility that a plaintiff's fame may be a pre-requisite to recovery. In Carson, similarly, the Sixth Circuit Court of Appeals focused on Johnny Carson's status as a celebrity, and noted that it was the basis for the pecuniary value of his identity, explaining that "a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity."

On the other hand, the very act of commercial exploitation may be sufficient to prove a plaintiff's pecuniary interest in their identity, meaning that satisfying the second prong of the test satisfies the first. In Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. App. 2009), a model sued a website for publishing her photo and sending it to a magazine without permission. The Court of Appeals of Michigan held that the act of publishing and sending the photo indicated that the model's identity had value, although it also acknowledged that her history as a dancer and model further supported the contention.

Parks and Carson demonstrate that the second prong does not require the defendant to sell or license the name for profit. Simply attaching the name to a product can constitute commercial exploitation.

Rights of the Deceased

The U.S. Court of Appeals for the Sixth Circuit recognizes Michigan's right of publicity as a property right as opposed to a dignitary right, which means that the right survives the death of the person. Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 325 (6th Cir. 2001). In Herman Miller, furniture manufacturer Herman Miller partnered with famous design Charles Eames to create a line of distinctive chairs. After Eames died, the Eames estate contractually assigned Eames's right of publicity to Miller. A rival furniture company, Palazzetti, tried to use the Eames name to sell its own version of the chair, claiming that Eames's right of publicity vanished on his death. The court disagreed, and held that the right of publicity still existed even after the designer himself died.

The decision in Herman Miller cites cases from other jurisdictions noting that the right of publicity is assignable to others. The case does not specify how long the right of publicity extends after death, nor does it appear that subsequent cases in Michigan have addressed this question. One can waive the right of publicity by signing a release. Hauf v. Life Extension Found., 454 Fed. Appx. 425, 431 (6th Cir. 2011).

First Amendment Defenses

First Amendment defenses have been historically recognized in Michigan as a limitation on a plaintiff's ability to bring a claim for appropriation or right of publicity. In Pallas v. Crowley, Milner & Co., 33 N.W.2d 911 (Mich. 1948), an early case that does not specifically discuss rights of publicity, the Supreme Court of Michigan held that a model had a cause of action against an advertiser for using her photograph without permission. Significantly, the Pallas opinion noted that the publication was for advertising and not news reporting, suggesting that the latter would not infringe on a right of publicity.

More recent state appellate cases suggest that a broad array of publications is thus protected from appropriation claims. In Battaglieri, a union leader claimed that a think tank had appropriated his identity by using his name and quote in its fundraising letters. The Court of Appeals of Michigan held that the fundraising letters were protected by the First Amendment because they contained information about public policy, the leader's name was only mentioned in the context of such policy, and the quote itself was made at a press conference. In Bowens v. Aftermath Entm't, No. 250984, 2005 WL 900603 (Mich. App. 2005), a group of city officials sued a group of musicians for publishing footage of a meeting between the two parties, claiming appropriation. The footage, depicting a dispute about the content of a particular live performance, was released as an extra on a popular DVD anthologizing the tour. The Court of Appeals of Michigan held that because the dispute was reported in the media, and because the plaintiffs in their capacity as public officials had a "real relationship" to the dispute, the musicians were protected by the First Amendment. The defendant's commercial interest in the sales of DVD did not prevent them from asserting their rights under the First Amendment. In each case, the opinion is careful to tie the plaintiff's identity to the matter of public interest.

The U.S. Court of Appeals for the Sixth Circuit similarly recognizes a First Amendment defense to right of publicity claims. In Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001), individuals depicted in a mini-series about the band The Temptations claimed that NBC had infringed on their right of publicity. The court held that "that the use of plaintiffs' fictionalized likenesses in a work protected by the First Amendment and the advertizing incidental to such uses" would be protected from claims for right of publicity.

However, such defenses are not always successful. In Parks the court explained that "we must conduct another balancing of interests -- Parks' property right in her own name versus the freedom of artistic expression." Ultimately the court held that the song title "Rosa Parks" did not necessarily merit First Amendment protection, as a jury could find that it was too far removed from the content of the song.

Remedies

Damages for right of publicity action can go up to a defendant's profits from the use of the name, plus costs. The court can also enjoin the defendant from further use of the name. Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104, 105 (6th Cir. 1987). However, if the plaintiff does not present evidence of financial harm, they may not be able to recover damages, even if they can enjoin the defendant from future use of their identity. Andretti v. Borla Performance Indus., 426 F.3d 824, 831 (6th Cir. 2005).

A plaintiff cannot receive punitive damages in Michigan unless authorized by statute. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 765 (2004). As there is no Michigan statute addressing a right of publicity or appropriation, punitive damages are not available for such claims.

Statute of limitations

Although no Michigan court has addressed the issue given the unsettled nature of the right of publicity in Michigan, it is likely that a right of publicity claim in Michigan would be subject to Michigan's general three-year statute of limitations for personal injury actions. Mich. Comp. Laws 600.5805(10).

This page covers legal information specific to the State of New Jersey. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

New Jersey's state appellate courts recognize a common law right of publicity and a comparable protection on a privacy theory under the state's appropriation tort. The United States District Court for the District of New Jersey has noted that both state and federal courts use the concepts of right of publicity and appropriation "interchangeably" when applying New Jersey's law. Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 761 (D.N.J. 2011). The state has no corresponding statute.

What constitutes a violation of the common law right of publicity?

In Faber v. Condecor, Inc., 477 A.2d 1289, 195 N.J. Super. 81 (App.Div. 1984), the Appellate Division of the Superior Court of New Jersey held that the unauthorized use of a family photo to sell picture frames constituted use for trade purposes, and therefore gave rise to an appropriation claim. A recent unpublished opinion by the same court, Jeffries v. Whitney E. Houston Acad. P.T.A., A-1888-08T3, 2009 WL 2136174 (N.J. Super. Ct. App. Div. July 20, 2009), interpreted Faber to require four elements for an appropriation claim:

1) The defendant appropriated the plaintiff's likeness,
2) without the plaintiff's consent,
3) for the defendant's use or benefit, and
4) damage.

In general, unauthorized publication of an identity for promotional or commercial purposes constitutes appropriation under New Jersey law. Conversely, publication that does not convey such a commercial benefit is considered "incidental" to the publication and does not qualify as appropriation. In Jeffries, the court held that a parent teacher association's sale of a video of a large student performance was only an incidental use of an individual student's identity. Similarly, in Castro v. NYT Television, 851 A.2d 88, 370 N.J. Super. 282 (App.Div. 2004), the same court held that including footage of a group of hospital patients in a television docudrama did not constitute appropriation. In Castro, a group of patients sued various parties involved in the creation of a television show for commercially appropriating the patient's identities. The show, "Trauma: Life in the E.R.," included footage from interviews with the plaintiffs. The court held that because the footage was not used for "trade purposes," the plaintiffs could not bring the claim. The court noted that the plaintiffs did not "allege... that any videotape footage of them was used for any specific promotional purpose."

Note that analysis of whether a publication is incidental might also implicate First Amendment considerations (see First Amendment Defenses, below). In Faber, the court explained that a photo accompanying an article in a newspaper would be considered an "Incidental Use of Name or Likeness" and therefore would not give rise to a cause of action. A photo included as an advertisement, however, would not qualify as incidental.

One may consent to another's use of one's identity for commercial purposes. However, in Faber, the court held that waiver for a particular use of a photo does not constitute waiver for another use. The plaintiffs in Faber had consented to the use of their photo in an instructional guide. The court held that the plaintiffs could still bring a claim against a defendant who used the photo to sell picture frames.

The fourth element, damage, has rarely been addressed as a requirement for a claim in New Jersey's courts.

What is protected?

New Jersey has adopted the Restatement (Second) of Torts, which explains that "one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy."

It appears that a distinctive voice or performance would be protected. In Prima v. Darden Restaurants, Inc., 78 F. Supp. 2d 337 (D.N.J. 2000), the United States District Court for the District of New Jersey held that imitating a singer's voice could infringe on his right of publicity under New Jersey common law. In Prima, the widow of a famous singer claimed the use of her late husband's identity in a restaurant commercial constituted an appropriation. The commercial featured a song that her late husband had made famous, sung by a performer who "unmistakably" copied her husband's voice and manner. Similarly, in Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981), the court held that an Elvis impersonator's show constituted an appropriation, though in that case the show also employed Elvis's name and likeness.

A plaintiff may be able to recover for appropriation of a fictional identity. In McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994), the United States Court of Appeals for the Third Circuit held that an actor would be able to bring a claim under New Jersey law for the appropriation of the identity of his character, depending on the association between the actor and character.

The United States District Court for the District of New Jersey has said that the right of publicity is "generally" for plaintiffs with public personas. Jarvis v. A & M Records, 827 F. Supp. 282, 298 (D.N.J. 1993). However, a plaintiff need not be a celebrity to successfully claim damages. In Canessa v. J. I. Kislak, Inc., 235 A.2d 62, 97 N.J. Super. 327 (Law Div. 1967), the plaintiff, a veteran with eight children, enlisted the help of real estate agency to help him to find a home for his family. After purchasing a house, the plaintiff allowed a paper to publish a piece on him and his search. The real estate agency subsequently included the article in its promotional materials for its salesmen, which the plaintiff claimed was an unauthorized appropriation. The Law Division of the Superior Court of New Jersey agreed, explaining:

Entirely apart, however, from the metaphysical niceties, the reality of a case such as we have here is, in the court's opinion, simply this: plaintiffs' names and likenesses belong to them. As such they are property. They are things of value. Defendant has made them so, for it has taken them for its own commercial benefit.

The United States Court of Appeals for the Third Circuit has held that simply using one's name as "placeholder," such as "John Doe," does not give rise to a claim under New Jersey law by a person who shares that name. Botts v. N.Y. Times Co., 106 Fed. Appx. 109, 110 (3d Cir. 2004).

Transfer of rights by death or assignment

In Prima, the United States District Court for the District of New Jersey noted that New Jersey treats the right of publicity as a property right. "As such," the court explained, "it can be assigned for commercial purposes during a person's life, and can descend to the person's estate upon his death." Prima at 346.

First Amendment Defenses

Some forms of speech, such political speech or news/entertainment, are protected by the First Amendment. Consider the following examples of protected speech.

In Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 186 N.J. Super. 335 (App.Div. 1982), a home-buyer claimed that publishing his name, photo, occupation, and information about the home that he had purchased constituted an appropriation. The Appellate Division of the Superior Court of New Jersey noted that the newspaper publishing the information had a "limited privilege" connected to the First Amendment to publish news articles. The court held that because the information about the transaction was already public, and because the paper's "minimally violative" disclosure of the home-buyer's job was "solely incidental to the news aspects of the sale," the plaintiff could not bring an appropriation claim. In its later ruling in Castro, the Appellate Division cited the decision in Bisbee and noted "it is irrelevant whether a videotape is broadcast in connection with a television story about important public events or a subject that provides only entertainment and amusement."

In G.D. v. Kenny, 15 A.3d 300, 205 N.J. 275 (2011), the New Jersey Supreme Court held that the inclusion of plaintiff's name and image in political paraphernalia was not a commercial use, and therefore a plaintiff could not bring an appropriation claim. In G.D., a political organization and its marketing partner distributed leaflets describing a politician's prior drug conviction. The court held that such campaign materials are "the type of speech that is at the heart of First Amendment," and that the financial interests of the marketing firm did not render the materials commercial.

For a good example of the limits of the scope of First Amendment defenses to appropriation claims, consider Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986). In Tellado, the United States District Court for the District of New Jersey held that while the First Amendment would protect the publication of a soldier's photo in a book about the Vietnam War, it would not protect the publication of the photo in the marketing materials enclosed within the book. As the court explained, "the defendant's right of free expression is abridged only insofar as it is required to share some of its profits with the individual whose likeness is helping to stimulate those profits." Also consider Presley, in which the court drew an analogy between "creative comment precluding a right of publicity claim" and fair use. In Presley, the court held that the Elvis impersonator's show was mainly an exploitation and not sufficiently "creative" to qualify for protection.

Damages and other remedies

Damages are available for appropriation claims under New Jersey law. Faber at 1295. Whether or not one is a celebrity will affect the calculation of damages. Canessa at 350. Calculation of damages for an appropriation claim may be subject to the degree to which the plaintiff retains ownership of the identity. McFarland at 922. Canessa noted that "it seems to us that however little or much plaintiff's likeness and name may be worth, defendant, who has appropriated them for his commercial benefit, should be made to pay for what he has taken, whatever it may be worth." Canessa at 351.

There are few opinions addressing the question of calculating damages under New Jersey law in appropriation cases. In a recent unpublished opinion, Leibholz v. Hariri, Civ. No. 05-5148 (D.N.J. Apr. 15, 2011), the United States District Court for the District of New Jersey quoted the Restatement (Second) of Torts in its calculation of damages for an appropriation claim. For privacy torts, the court explained, the Restatement looks to:

(a) the harm to (the plaintiff's) interest in privacy resulting from the invasion; (b) (the plaintiff's) mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.

In Faber, the Appellate Division of the Superior Court of New Jersey held that the plaintiff could claim damages for the "mental anguish" they suffered from the unauthorized publication of a family photo. On the other hand, in McFarland, the United States Court of Appeals for the Third Circuit held that, under its interpretation of New Jersey law, "deprivation of property" and "lost earnings" could be considered under the right of publicity but suggested that psychological harm ought to be associated with an invasion of privacy claim. In this case, the federal court may have been drawing a distinction between right of publicity and appropriation, though again Hart indicates that both federal and state courts treat them "interchangeably."

New Jersey state courts have also issued injunctive relief for appropriation claims. Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458, 96 N.J. Super. 72, 80 (Ch. Div. 1967). Federal courts interpreting New Jersey law have done the same, including issuing a preliminary injunction. Presley at 1382.

Statute of limitations

As a property right, at least one New Jersey court has held that New Jersey's right of publicity claim is subject to the six-year statute of limitations for  invasion of property rights. Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 352 (Law Div. 1967).

This page covers legal information specific to the State of New York. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

New York has codified its right of publicity as part of its "Right of Privacy" statute, at Article 5 of the N.Y. Civil Rights Law. You should familiarize yourself with Sections 50 and 51, the primary statutory provisions for right of publicity actions. New York does not recognize a separate common law right of publicity.

Relationship between Sections 50 and 51

The two sections, 50 and 51, describe similar rights but provide for different enforcement mechanisms. Section 50 makes a right of publicity violation a misdemeanor, while Section 51 provides a private cause of action. Though right of publicity lawsuits in New York often reference both sections, Section 51 is the primary (and more detailed) provision for most purposes.

What is protected?

Section 51 provides protection for a person's: 

• name 
• portrait 
• picture, and 
• voice. 

Names: The right of publicity statute does not protect corporate or partnership names. Jaggard v. R.H. Macy, 26 N.Y.S. 829 (N.Y. Sup. Ct. 1941). New York courts have long recognized that "there are other remedies" for the unauthorized use of corporate names. Rosenwasser v. Ogoglia, 158 N.Y.S. 56 (N.Y. App. Div. 1916). This lack of protection for trade names has been held to bar a claim under Section 51 for misappropriation of assumed names, like "Dr. Seuss." Geisel v. Poynter Products, Inc., 195 F. Supp. 331, 355-56 (S.D.N.Y. 1968); but see DeClemente v. Columbia Pictures, 860 F. Supp. 30, 53 (E.D.N.Y. 1994) (suggesting that a stage name might be protected if it is "closely and widely identified" with its user).

Portraits and Pictures: Courts have construed the portrait/picture provisions of the statute somewhat broadly, to include "any recognizable likeness, not just an actual photograph." Burck v. Mars, Inc., 571 F. Supp. 2d 446, 451 (S.D.N.Y. 2008). The statute covers a representation if it "conveys the essence and likeness of an individual," even if the representation is not completely photo-realistic. Onassis v. Christian Dior-New York, 472 N.Y.S. 2d 254, 261 (N.Y. Sup. Ct. 1984). Sculptures, mannequins, and other three-dimensional "likenesses" may be covered. Young v. Greneker Studios, 26 N.Y.S. 2d 357 (N.Y. Sup. Ct. 1941).

Voice: "Voice" was added to § 51 (but not to § 50) in 1995. Thus, one must be cautious of pre-1995 cases like Maxwell v. N.W. Ayer, Inc, 605 N.Y.S.2d 174, which dismiss voice-related right of publicity claims.

Rights of deceased persons

New York does not recognize a posthumous right of publicity. Mirone v. MacMillan, 894 F.2d 579, 585 (2d Cir. 1990).

What constitutes a violation?

To violate § 51, a use of a person's identity must be:

• Within New York state; 
• For advertising or trade purposes; and 
• Without written consent. 

The focus on advertising and trade means that a use designed to solicit sales of products or services is forbidden. But this category of advertising uses is somewhat narrow; § 51 contains a long list of exceptions to the right of publicity, which include protections for:

• professional photographers against suits by their subjects; 
• the use of an author's name, in connection with the work of that author; 
• owners of copyrights in sound recordings; and 
• using a person's identity in connection with products, if the person manufactured or sold those products under their identity. 

There is also a significant newsworthiness exception. A defendant is not liable for using a person's identity in connection with a "newsworthy" article, such as a newspaper article. New York courts have interpreted "newsworthy" broadly, to include "a wide variety of articles on matters of public interest," not just "hard news" articles. Messenger v. Gruner + Jahr Printing, 94 N.Y. 2d 436, 441-42 (N.Y. 2000). Newsworthy uses of a person's identity do not violate the right of publicity statute, even though the publisher intends them to sell copies, attract advertising, or otherwise produce revenue.

Advertisements that promote an otherwise privileged use of a person's identity are also exempt from liability. So, for example, if a magazine legitimately publishes photographs of a model, it can use those pictures to attract subscribers. Lerman v. Flynt Distributing, 745 F.2d 123, 130-31 (2d Cir. 1984).

In some circumstances, the First Amendment "actual malice" doctrine may affect a case's outcome. Courts have held that defendants may forfeit the newsworthiness defense if the article in question contains a "severe" degree of falsity. Lerman v. Flynt Distributing, 745 F.2d 123, 132-33 (2d Cir. 1984) If the plaintiff is a public figure, though, the defendant can only be held liable if he published the falsehoods with actual malice. Id. at 135-38.

Damages

Section 51 provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. The damage award primarily compensates for emotional distress. See Garis v. Uncut-RawTV, No. CV 06–5031, 2011 WL 4404035, at *3-4 (E.D.N.Y, July 5, 2011).

Section 51 also provides for punitive or exemplary damages, if certain conditions are met. A plaintiff can recover exemplary damages if the defendant knew that the plaintiff had not consented to the use of her identity. Id. at 4-5. Courts may award exemplary damages if necessary to deter future violations of Section 51.

Statute of limitations

Claims under Section 51 of the Civil Rights Law are subject to a one-year statute of limitations.  N.Y. Civ. Prac. Law & Rules, § 215(3).

This page covers legal information specific to the State of North Carolina. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

North Carolina does not provide a statutory basis for right of publicity claims. In 2009, the North Carolina legislature proposed, but did not enact, legislation that addressed the right of publicity. 

North Carolina appellate courts have only applied the missapropriation branch of the invasion of privacy tort in two cases. The Supreme Court of North Carolina last addressed misappropriation of image in 1938. 

In Flake v. Greensboro News, 212 N.C. 780 (1938), the North Carolina Supreme Court recognized a cause of action for the unauthorized use of one's photograph or likeness in connection with an advertisement or other commercial enterprise. In Flake, the plaintiff brought suit on the basis of an advertisement published in a local newspaper that featured a picture of her dressed in a bathing suit. She showed evidence that the photograph was published in this instance without her consent. The court held that the unauthorized use of a plaintiff's photograph in connection with an advertisement or other commercial enterprise would give rise to a cause of action, but that absent a showing of special damages, only nominal and injunctive relief could be granted.

It is not clear from the opinion in Flake whether the court treats the right of publicity as a property or privacy-based right. The court explicitly did not reach the question of whether First Amendment or newsworthiness defenses might apply to such a cause of action in other contexts.

In Barr v. Southern Bell Tel. and Tel. Co., 13 N.C. App. 388 (1972), a telephone company published a phone directory including an advertisement for the plaintiff's rug cleaning company; however, although the telephone company included the plaintiff's name, it used the likeness of an unrelated third party in connection with the plaintiff's name. The plaintiff had signed an agreement that allowed for the commercial use of his image; however, the appellate court held that the publication of plaintiff's name in connection with the mistaken image exceeded the scope of this consent, and might justify a finding of invasion of privacy. The decision implies that consent is a defense, but that if a publication exceeds the scope of consent, that the publication may be actionable.

A right of publicity claim in North Carolina is likey subject to the state's general three-year statute of limitations for personal injury claims. N.C. Gen. Stat. § 1-52(16).

This page covers legal information specific to the State of Ohio. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the right of publicity in Ohio protects against unwarranted appropriation or exploitation of one's personality. Ohio has two systems of right of publicity law: a statutory right as a property interest, and a common law right as a right of privacy.

Ohio codifies its statutory right of publicity in Ohio Rev. Code Ann. § 2741. You should first familiarize yourself with the statute.

Ohio recognizes the unwarranted appropriation or exploitation of one's personality as an actionable invasion of privacy tort. Housh v. Peth, 133 N.E.2d 340, 341 (Ohio 1956). Ohio's right of publicity statute explicitly states that a right of publicity is a property right. Ohio Rev. Code Ann. § 2741.01(D). 

At common law, Ohio has not distinguished the right of publicity from the tort of misappropriation; courts commonly refer to the tort as "appropriation of one's name or likeness." A federal court applying Ohio law said that the "right of publicity is a creature of state law, and its violation gives rise to a cause of action for the commercial tort of unfair competition." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003).

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Ohio's statutory right of publicity is found under Ohio Rev. Code Ann. § 2741, "Right of Publicity in Individual's Persona." Ohio's right of publicity statute expressly states that its provisions are in addition to common law rights. Ohio Rev. Code Ann. § 2741.08.

The statute defines "right of publicity" as "the property right in an individual's persona to use the individual's persona for a commercial purpose." Ohio Rev. Code Ann. § 2741.01. The Ohio statute protects the following aspects of an individual's "persona," if those aspects have commercial value:

• Name
• Voice
• Signature
• Photograph
• Image
• Likeness
• Distinctive appearance

Ohio Rev. Code Ann. § 2741.01(A).  The statute does not define the term "commercial value." 

The statute defines "commercial purpose" as the use of an aspect of an individual's persona in any of the following ways:

• On or in connection with a place, a product, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
• To advertise or solicit the purchase of products, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
• To promote travel to a place.
• For fundraising.

Ohio Rev. Code Ann. § 2741.01.

Who Can Exercise the Statutory Right of Publicity   

The Ohio right of publicity statute protects living and deceased natural persons for the duration of a person's lifetime plus 60 years. Ohio Rev. Code Ann. § 2741.02. The statute applies to living individuals domiciled or residing in Ohio; it applies to deceased individuals only if  (1) the individual died on or after January 1, 1998, and (2) the individual's domicile or residence was in Ohio at the time of death. Ohio Rev. Code Ann. § 2741.03.

In addition to the 60-year post-mortem protection, the Ohio right of publicity statute specifically prohibits the unauthorized use of the persona of a deceased member of the Ohio National Guard or the U.S. armed forces for ten years after the date of death. Ohio Rev. Code Ann. §§ 2741.02(A)(3) and 2741.99. The Ohio statute provides both civil remedies and criminal penalties for violations of the provisions. Ohio Rev. Code Ann. § 2741.99.

Under the Ohio statute, the right of publicity is a property right and is freely transferable and descendible, in whole or in part, by:

• contract
• license
• gift
• trust
• will
• operation of the laws of intestate succession applicable to the state administering the majority of the real and personal property of an individual who died intestate, regardless of whether that state recognizes the right of publicity as a property right.

Ohio Rev. Code Ann. § 2741.04.

The statute requires that any consent to use an individual's right of publicity for a commercial purpose be made in writing, which includes written, electronic, digital or any other verifiable means of authorization. Ohio Rev. Code Ann. § 2741.05.  Consent may be given by any person or persons (including the individual whose right of publicity is at issue) who (1) collectively own more than 50% of the right of publicity, or (2) is expressly authorized in writing to grant consent by the collective owner(s) of more than 50% of the right. Ohio Rev. Code Ann. § 2741.05(A).

The following persons may bring a civil action to enforce the publicity rights set out in the Ohio statute: (1) a person or persons, including an individual whose right of publicity is at issue, who collectively own all of an individual's right of publicity, subject to any licenses regarding that right of publicity; (2) a person, including a licensee of an individual's right of publicity, who is expressly authorized in writing by the owner or owners of an individual's right of publicity to bring a civil action; (3) a person to whom ownership or any portion of ownership of an individual's right of publicity has been transferred. Ohio Rev. Code Ann. § 2741.06(A).

Before bringing an civil action, a person who holds partial ownership of an individual's right of publicity must give notice to that person and to any other person to whom ownership has been transferred. That individual, and any other transferees of the right, may object to the proposed civil action within time frames set forth in the statute. If holders of more than fifty percent (50%) of the right of publicity object in a timely fashion, the action may not proceed. Ohio Rev. Code Ann. §§ 2741.06(B), (C).

What Constitutes a Statutory Violation 

The elements of a civil claim under the Ohio right of publicity statute are:

• use of any aspect of an individual's persona,
• for a commercial purpose,
• during the individual's lifetime or the 60 years after the date of the individual's death,
• without written consent.

Ohio Rev. Code Ann. § 2741.02.

Mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).

 

THE COMMON LAW RIGHT

What the Common Law Right Protects

Ohio recognizes a common law cause of action for the unauthorized commercial use of a living person's name, likeness or identity as a right of privacy. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977). "The fundamental wrong is the appropriation for one's self of the benefits of another's name, likeness, or identity, and the wrong is the same whether or not that benfit is pecuniary." Id. at 458. That court held that the applicable principles of the tort were set out in the Restatement of Torts (Second) § 652C.

"The right of publicity is an intellectual property right of recent origin which is the inherent right of every human being to control the commercial use of his or her identity." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003) (internal citations omitted).

Ohio's common law right of publicity protects natural persons, but does not extend to deceased persons. See Reeves v. United Artists, 765 F.2d 79 (6th Cir. 1983), Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir. 1970).

The Supreme Court of Ohio has not expressly stated whether Ohio common law protection requires that the person's identity have commercial value. See Vinci v. Am. Can Co., 459 N.E.2d 507, 510 (Ohio 1984). However, one court has  stated that a plaintiff must plead that the misappropriated name or likeness has "intrinsic value, which was taken by defendant for its own benefit, commercial or otherwise." Jackson v. Playboy Enters., Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983)

 

What Constitutes a Violation of the Common Law Right

The elements of a common law claim of appropriation of a person's name or likeness are:

• Use of another person's name or likeness.
• For one's own benefit.

The use or benefit of a person's name does not have to be commercial.  Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 458 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977): "The interest which the law protects is that of each individual to the exclusive use of his own identity, and that interest is entitled to protection from misuses whether the misuse is for commercial purposes or otherwise."

A defendant must have appropriated the reputation, prestige, social, or commerical standing, public interest, or other values of a person's name or likeness. Brooks v. American Broadcasting Co., 727 F. Supp. 431 (N.D. Ohio 1991), aff'd, 999 F.2d 167 (6th Cir. 1991), cert. denied, 510 U.S. 1015 (1993).

 

DAMAGES

Statutory 

Remedies under Ohio's right of publicity statute include:

• injunctive and other relief (e.g. impoundment and destruction of items),
• actual damages,
• statutory damages,
• attorney's fees, costs, and expenses,
• treble damages, and
• punitive or exemplary damages.

Ohio Rev. Code Ann. § 2741.07.

As noted above, the statutory remedies are supplemental to any other remedies provided by state or federal statute or common law. Ohio Rev. Code Ann. § 2741.07.

In regards to statutory damages, a plaintiff may recover statutory damages in lieu of actual damages. The trier of fact has discretion to award statutory damages of  (1) not less than $2,500, and (2) not more than $10,000. Ohio Rev. Code Ann. § 2741.07(A)(1)(b). Factors to be considered in setting the amount of a statutory damage award include the:

• willfulness of the violation
• harm to the persona in question
• ability of the defendant to pay a civil damage award

Ohio Rev. Code Ann. § 2741.07(A)(1)(b).

Under the Ohio statute, a court may award treble damages against the owners or employees of any advertising medium in which an advertisement or solicitation is published or disseminated, is there is a finding that the owners or employees had knowledge of the unauthorized use of the persona. Ohio Rev. Code Ann. §§ 2741.02(E) and 2741.07(B)(2).

Common Law 

Civil remedies under Ohio common law include actual damages and injunctive relief.  The court in James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 124 (Ohio Ct. App. 2006), held that a plaintiff need not establish actual damages to prevail on a misappropriation of name claim, and a may seek to recover nominal, compensatory, and if appropriate, punitive damages for claims of misappropriation. 

LIMITATIONS AND DEFENSES 

All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.

Statutory  

The Ohio right of publicity statute specifically exempts use of an individual's persona in a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement not exempt; material that has political or newsworthy value; original works of fine art; or an advertisement or commercial announcement for a use permitted in any of these works. Ohio Rev. Code Ann. § 2741.09 (A)(1).

There are also newsworthy exemptions in the statute. For example, the statute specifically exempts use of:

• an individual's name to truthfully identify the individual as the author of or contributor to a written work, or the performer of a recorded performance where the written work or the recorded performance is otherwise lawfully reproduced, exhibited or broadcast;
• an aspect of an individual's persona in connection with the broadcast or reporting of an event or topic of general or public interest; and
• an individual's persona solely in the individual's role as a member of the public if the individual is not named or otherwise singled out.

Ohio Rev. Code Ann. § 2741.09 (A)(2),(3),(4), see also Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004) (right of privacy under Ohio law does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.)

Other exemptions include use of:

• an individual's persona by an institution of higher education if the individual is or was a student at, or a member of the faculty or staff of, the institution; and the use is for educational purposes or to promote the institution and its educational or institutional objectives; and
• an individual's persona that is protected by the First Amendment to the Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

Ohio Rev. Code Ann. § 2741.09(5),(6). 

The statute also permits use of a deceased individual's persona for a commercial purpose if the name of the individual was the name of a business entity or a trade name at the time of the individual's death. Ohio Rev. Code § 2741.02(B)(2). 

Common Law

As noted above, mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).

In Zacchini v. Scripps-Howard Broad. Co., the Supreme Court held that there is no consitutional privilege immunizing television stations from damages for an alleged infringement of the right of publicity which a performer has in his particular commercial activity. 433 U.S. 562, 578 (1977).

There is a legitimate public interest exception for the right of publicity. Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004). There is no misappropriation when a person's name or likeness is used in contact of general news reporting. Brooks v. American Broadcasting Co., 737 F. Supp. 431 (N.D. Ohio 1991). 

 

STATUTE OF LIMITATIONS 

Statutory  

An action must be brought within four years of a violation. Ohio Rev. Code Ann. § 2741.07(C).

Common Law  

A four year statute of limitations applies to Ohio's common law right of publicity actions under the invasion of privacy tort. Ohio Rev. Code Ann. § 2305.09(D).

 

This page covers legal information specific to the State of Pennsylvania. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the right of publicity in Pennsylvania protects against unauthorized uses of a person's name or likeness for commercial purposes. Pennsylvania has two systems of right of publicity law: a statutory right, and a common law right.

Pennsylvania codifies its statutory right of publicity in 42 Pa. Cons. Stat. § 8316. You should first familiarize yourself with the statute.

At common law, Pennsylvania has distinguished the right of publicity from the tort of misappropriation (called "invasion of privacy by appropriation of name or likeness"). However, it is unsettled in Pennsylvania if 42 Pa. Cons. Stat. § 8316 has absorbed the common law tort of invasion of privacy by appropriation of name or likeness. Please see below for more information on these distinctions. 

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Pennsylvania's statutory right of publicity is found under 42 Pa. Cons. Stat. § 8316. The official title of the statute is "Unauthorized Use of Name or Likeness," but it is commonly referred to as the "Right of Publicity" statute. "Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose" may bring an action for infringement. 42 Pa. Cons. Stat. § 8316. 

A "natural person," as defined by the statute, is "a living person or a deceased person who was domiciled within this Commonwealth at the time of such person's death." 42 Pa. Cons. Stat. § 8316(e).

The term "name" or "likeness" is defined in the statute as any attribute of a natural person that identifies him to an ordinary, reasonable viewer or listener. These attributes include:

• Name
• Signature
• Photograph
• Image
• Likeness
• Voice
• A substantially similar imitation of one or more of the above

42 Pa. Cons. Stat. § 8316(e).

The term "commercial value" means a "valuable interest in a natural person's name or likeness that is developed through the investment of time, effort and money." 42 Pa. Cons. Stat. § 8316(e); see also Lewis v. Marriott Intern. Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007)(arguing that revenue figure evidence show commercial success of plaintiff's wedding packages, and this supports the claim that plaintiff's investment of time, effort and money in promoting and selling wedding packages has "commercial value").

Who Can Exercise the Statutory Right of Publicity   

Though it does not expressly address transferability, the statute allows other parties, including individuals, firms and corporations, to bring an action on behalf of a person whose right of publicity has been violated. A party can act on behalf of a natural person if authorized in writing by that person to license the commercial or advertising purposes of his name or likeness. 42 Pa. Cons. Stat. § 8316(b)(4).

The statute also protects a deceased person if they were domiciled within Pennsylvania when they died. 42 Pa. Cons. Stat. § 8316(a),(e). The statute recognizes a thirty year post-mortem right of publicity. 42 Pa. Cons. Stat. § 8316(c); see also Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).

The statutory post-mortem right of publicity in Pennsylvania can be enforced by:

• A person, firm, or corporation authorized in writing to license the commercial or advertising use of the natural person's name or likeness by:
  • the natural person during his lifetime; or
  • a will or other testamentary device.
• An executor named in a will or designated by a court;
• The decedent's surviving spouse or, if there is no surviving spouse, other heir or group of heirs who have at least a 50% interest in the decedent's estate.

42 Pa. Cons. Stat. § 8316(b)(3).

What Constitutes a Statutory Violation 

The elements of a claim for violation of Pennsylvania's Right of Publicity statute are:

1. The natural person's name or likeness has commercial value; and
2. The name or likeness was used for any commercial or advertising purpose; and
3. The name or likeness was used without written consent of the natural person or the written consent of any party authorized to give consent.

42 Pa. Cons. Stat. § 8316(a).

Under Pennsylvania's Right of Publicity statute, a natural person's name or likeness can be identified by any attribute that identifies that natural person to an ordinary, reasonable viewer or listener. 42 Pa. Cons. Stat. § 8316(e).

The law does not apply when:

1. The person appears as a member of the public and is not named or otherwise identified,
2. The name or likeness is associated with a news report or presentation having public interest,
3. The name or likeness is an "expressive work" or "original work of fine art" [terms defined in the statute],
4. The name or likeness is associated with an announcement for a commercial or advertising purpose for certain permitted uses in paragraph (2) and (3) above,
5. It is associated with the identification of a natural person as the author or contributor to a written work, or the performer of a recorded performance under circumstances in which the written work or recorded performance is lawfully produced, reproduced, exhibited, or broadcast. 

42 Pa. Cons. Stat. § 8316(e)(2).

The statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).

Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action (1) to enjoin the unauthorized use, and/or (2) to recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a); see also Tillery v. Leonard & Sciolla, LLP, 437 F. Supp. 2d 312 (E.D. Pa. 2006).

 

THE COMMON LAW RIGHT

What the Common Law Right Protects

Pennsylvania recognizes a common law right of publicity. "The right of publicity inures to an individual who seeks to protect and control the commercial value of his name or likeness." Eagle's Eye, Inc. v. Ambler Fashion Shop, Inc., 627 F. Supp. 856, 862 (E.D. Pa. 1985). The court in Eagle's Eye called the right a "misappropriation of right of publicity," and claimed it was derived from the right of privacy, though noted it was "entirely" different from the right of privacy. Eagle's Eye at 862; see also Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007); Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3 (E.D. Pa. Mar. 2, 2007); World Wrestling Federation Entm't, Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 443 (W.D. Pa. 2003)

The common law right of publicity grants a person or a group the exclusive right to control the commercial value of his/their name and likeness. Eagle's Eye at 862. The right of publicity in Pennsylvania protects individuals and groups (e.g., musical groups) by giving them the right to control the commercial use of their inherently distinctive names and likenesses. See Brockum Co. v. Blaylock, 729 F. Supp 438, 445–46 (E.D. Pa. 1990); Apple Corps Ltd. v. Button Master, P.C.P., Inc., No. 96-5470, 1998 WL 126935, at *13 (E.D. Pa. Mar. 19, 1998); Philadelphia Orchestra Ass'n v. Walt Disney Co., 821 F. Supp. 341, 344–45 (E.D. Pa. 1993); Hogan v. A. S. Barnes & Co., 114 U.S.P.Q. 314, 230 (Pa. Com. Pl. 1957) (finding violation of right of publicity, but calling it "unfair competition under another label).

The right only applies to natural persons. Fraternal Order of Police v. The Crucifucks, No. 96-2358, 1996 WL 426709, at *2 (E.D. Pa. July 29, 1996) However, in dicta, the District Court for the Eastern District of Pennsylvania, in a case about blues singer Bessie Smith, implied (by considering who had the capacity to sue for violations after the right after Smith's death under Pennsylvania law) that there is a postmortem exclusive right to use an individual's name and likeness. See Gee v. CBS, Inc., 471 F. Supp. 600, 617 (E.D. Pa. 1979) ("In short, far from being a hollow formality, the requirement that a qualified administrator or executor sue under the survival statute reflects the heart of the statute, which is that a cause of action survives in favor of the decedent's estate.")

A corporation can own an individual or group's right of publicity, as a corporate third-party licensee. Brockum Co. v. Blaylock, 729 F. Supp. 438, 446 (E.D. Pa. 1990). The licensee has the authority to enjoin the use of the licensor's name or likeness. Nice Man Merch., Inc. v. Logocraft Ltd., No. 91-7475, 1992 WL 59133, at *5 (E.D. Pa. Mar. 18, 1992); see also Apple Corps Ltd., No 96-5470, 1998 WL 126935, at *14 (E.D. Pa. Mar. 19, 1998). Although Pennsylvania recognizes the right of publicity of a group of persons, courts have held that the common law right of publicity does not protect the trademarks and images of corporations, partnerships or similar institutions. See Apple Corps Ltd., No 96-5470, 1998 WL 126935 (E.D. Pa. Mar. 19, 1998); Eagle's Eye, Inc., 627 F. Supp. 856.

What Constitutes a Violation of the Common Law Right

To establish a violation of the right of publicity, the plaintiff must prove that the defendant is appropriating the plaintiff's valuable name or likeness, without authorization, to defendant's commercial advantage. Philadelphia Orchestra Ass'n, 821 F. Supp. at 349. In order to infringe a group's right of publicity, the name appropriated must have a secondary meaning. Id.

An allegation of commercial value may not be required, as courts apply a presumption of commercial value based on the act of a defendant's decision to use a person's identity. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3. "Inherent in the act of a defendant using a person's name ... in a commercially advantageous manner is the presumption that the identity has commercial value." Fanelle v. Lojack Co., No. 99-4292, 2000 WL 1801270, at *11 (E.D. Pa. Dec. 7, 2000).

Some courts conflate the right of publicity with the separate concept of misappropriation/invasion of privacy by appropriation of name or likeness. One distinction between the torts is that violation of the right of publicity requires an element of commercial advantage, while invasion of privacy by appropriation of name or likeness does not. 

 

Right of Publicity vs. Invasion of Privacy by Appropriation of Name or Likeness

The Pennsylvania Supreme Court has expressly recognized a cause of action for "invasion of privacy" by "appropriation of name or likeness." See Corabi v. Curtis Publishing Co., 273 A.2d 899 (Pa. 1971), Vogel v. W. T. Grant Co., 327 A.2d 133 (Pa. 1974); Chan v. County of Lancaster, No. 10-cv-03424, 2011 WL 4478283 (E.D. Pa. Sept. 26, 2011). In addition, courts in Pennsylvania have relied upon § 652C of the Restatement (Second) of Torts for cases involving invasion of privacy by appropriation of name or likeness. AFL Phila. LLC v. Krause, 639 F. Supp. 2d 512, 529-30 (E.D. Pa. 2009). 

Many courts in Pennsylvania conflate the right of publicity with misappropriation of name or likeness. But although the two torts are similar under Pennsylvania law, the "right of publicity" is not identical to "invasion of privacy by appropriation of name or likeness." One distinction is that the invasion of privacy by appropriation of name or likeness does not require the appropriation to be commercial. AFL Phila. LLC, 639 F. Supp. 2d at 531.

In 2003, the Pennsylvania legislature enacted 42 Pa. Cons. Stat. § 8316. Since then, at least one district court has stated that the cause of action for invasion of privacy by misappropriation of identity has been "subsumed" by § 8316. Facenda v. NFL Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa.2007).  However, in a later decision, the same court held that it was hesitant to rule, absent guidance from the legislature or the Supreme Court of Pennsylvania, that this previously-recognized common law cause of action was subsumed by statute. Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 429 (E.D. Pa. 2007). "[A]s a matter of statutory construction, 'statutes are not presumed to make changes in the rules and principles of common law or prior existing law beyond what is expressly declared in their provisions.'" Id. Therefore, it remains unsettled whether § 8316 has superceded the tort of invasion of privacy by appropriation of name or likeness. 

A federal court in Pennsylvaniahas  stated that invasion of privacy by appropriation of name or likeness is a personal right created to protect one's privacy, while the right of publicity more closely resembles a property right created to protect commercial value. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3.

 

DAMAGES

Statutory 

Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action to enjoin the unauthorized use and recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a).

Common Law 

We have not found any cases discussing damages or injunctive relief. There have been cases where injunctive and monetary relief has been granted, but in an award combined with awards on trademark or other claims. See Apple Corps Ltd., No 96-5470, 1998 WL 126935; Brockum Co., 729 F. Supp at 445–46.

"Damages...are intended to protect the property right of an individual to the exclusive use of his own identity, notoriety, or skill," Worthy v. Carroll, No. 02-6882, 2003 WL 25706359, at *4 (E.D. Pa. July 16, 2003).

The court in Seale v. Gramercy Pictures, 964 F.Supp. 918, 929-30 (E.D. Pa. 1997) predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Unfair Competition § 46 as its standard for the right of publicity. The Restatement (Third) of Unfair Competition § 46 defines the right of publicity as follows: "One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49 [injunctive and monetary relief]." Restatement (Third) of Unfair Competition § 46.

 

LIMITATIONS AND DEFENSES 

All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.

Statutory  

As noted above, the statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).

Pennsylvania's right of publicity statute is not preempted by federal copyright law because it requires a showing of commercial value, an additional element beyond a federal copyright infringement claim. Facenda, 542 F.3d at 1027; see also 42 Pa. Cons. Stat. § 8316(a),(e). 

Common Law

Court have recognized several common law exceptions for the common law right of publicity, including First Amendment defenses and protection for publications about newsworthy public figures.  

Federal courts have found that First Amendment considerations can outweigh enforcement of a publicity right. Seale, 949 F. Supp. at 337. The Supreme Court of Pennsylvania has held that "a public figure has no exclusive rights to his own life story" and others do not need consent or permission of the subject to write a biography of a celebrity. Corabi v. Curtis Pub. Co., 273 A.2d 899, 918 (Pa. 1971).

STATUTE OF LIMITATIONS 

Statutory  

Though not a statute of limitations per se, under Pennsylvania's right of publicity statute the right of publicity is descendible. However no action can be commenced more than thirty years after the death of the natural person who is the subject of the dispute. 42 Pa. Cons. Stat. § 8316(c). 

Depending on whether the right of publicity is treated as a property right or privacy right, it could be subject to different limitations. For example, claims of privacy are governed by a one year statute of limitation. 42 Pa. Cons. Stat. § 5523(1).  Property claims have a two year statute of limitations. For example, statutory trademark claims under the Lanham Act are subject to Pennsylvania's two-year statute of limitations. See Beauty Time, Inc. v. VU Skin Systems, Inc., 118 F.3d 140, 143 (3d Cir. 1997), Guardian Life Ins. Co. of America v. American Guardian Life Assur. Co., 943 F.Supp. 509, 517 (E.D. Pa. 1996).

Common Law  

With respect to the common law right of publicity, the applicable statute of limitations has not been interpreted under Pennsylvania law.

There is a two year "catchall" statute of limitations that might govern the right of publicity. 42 Pa. Cons. Stat. § 5524(7).  Claims of misappropriation (invasion of privacy) are governed by a one-year statute of limitations. 42 Pa. Cons. Stat. § 5523(1).

This page covers legal information specific to the State of Texas. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the Right of Publicity in Texas protects against unauthorized uses of a person's name or likeness for commercial purposes. Texas has two systems of Right of Publicity law: a statutory posthumous right, and a common law right.

Texas codifies its statutory Right of Publicity at Title 4, Chapter 26 of the Property Code. You should first familiarize yourself with that statute. Texas has not distinguished its common law right of publicity from misappropriation, using those concepts interchangeably. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999) ("The tort of misappropriation of one's name or likeness is generally referred to as the ‘Right of Publicity.'").

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Texas's statutory Right of Publicity is a property right that protects a person's right in his or her name and likeness after his or her death. The statute applies to anyone who died on or after January 1, 1937, whose identity has commercial value at or after the time of his or her death. Tex. Prop. Code Ann. § 26.003(2). The Right of Publicity lasts for 50 years after the death of the individual. Tex. Prop. Code Ann. §§ 26.003(1), 26.012(d).

Texas's statute, Texas Property Code, T. 4, Ch. 26, known as the "Buddy Holly Bill," protects a person's:

• name,
• voice,
• signature,
• photograph, or
• likeness.

The term "name" applies only to the "actual or assumed name used by an individual which, when used in conjunction with other information, is intended to identify a particular person." Tex. Prop. Code Ann. § 26.001.

The term "photograph" includes still or moving pictures or reproductions of an individual in which a viewer could "reasonably determine" the individual's identity with the naked eye. Tex. Prop. Code Ann. § 26.001; see also Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D. Tex. 1985).

The term likeness has not been explicitly defined, but this category includes pictures, drawings, and the use of a singer's voice. It does not include accounts of general incidents from one's life or one's life story, especially if they are fictionalized. See Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); see also O'Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. Dec. 19, 2003).

Who Can Exercise the Statutory Right of Publicity

The Right of Publicity is a transferable, descendible property right. Tex. Prop. Code Ann. §§ 26.004-.005. Because the right is freely transferable in whole or part, only an individual who owns more than half may exercise that right and have standing to sue for infringement. Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009). The right can be transferred before or after death by contract, trust, or testamentary documents. Tex. Prop. Code Ann. § 26.004. If the Right of Publicity has not been transferred before or upon death, it vests in the individual's spouse and children or grandchildren. Tex. Prop. Code Ann. § 26.005. In addition, if the Right of Publicity does not vest by transfer or operation of law within a year of the individual's death, it is terminated. Tex. Prop. Code Ann. § 26.010.

As in California, to exercise this Right of Publicity within the first year of the individual's death, the holder must register the property right claim with Texas's Secretary of State. Tex. Prop. Code Ann. §§ 26.006-.008. After a year has passed, the owner may exercise the Right of Publicity whether or not the property right claim is registered. Tex. Prop. Code Ann. § 26.009. Registered claims constitute prima facie evidence of a "valid claim to a property right" that will generally prevail over a conflicting, unregistered claim. Tex. Prop. Code Ann. § 26.007.

What Constitutes a Statutory Violation

Under Texas's statute, a person may not, without the written consent of the property right holder, use a deceased individual's name, voice, signature, photograph, or likeness, "in connection with products, merchandise, or goods; or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services." Tex. Prop. Code Ann. § 26.011.

The Texas statute does not provide for a specific test for identifying an unauthorized use associated with the Right of Publicity, though courts have often applied the common law test discussed below.

The Texas statute also provides an exception for media use including:

• a play, book, film, radio program, or television program;
• a magazine or newspaper article;
• material that is primarily of political or newsworthy value;
• single and original works of fine art; or
• an advertisement for the above uses.

Tex Prop. Code Ann. § 26.012; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).

THE COMMON LAW RIGHT

What the Common Law Right Protects

Texas common law recognizes a right of publicity that protects the name or likeness of living persons (in contrast to the statutory right, which arises after death). Treated more as a privacy right than property right, this common law right of publicity has not been distinguished from misappropriation. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); see also Brown v. Ames, 201 F.3d 654 (5th Cir. 2000); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001).

This right protects an individual's "name or likeness," which has been interpreted as an individual's "identity." See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). Texas courts have interpreted this in a similar manner to the statutory right, with the same limitation on the use of one's life story. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009). Like the statute, the common law intends to protect the value associated with a name or identity rather than the name per se. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999).

What Constitutes a Violation of the Common Law Right

Texas state courts and the Fifth Circuit have articulated a traditional three-prong test for misappropriation. These common law elements include:

• Did the defendant appropriate the plaintiff's name or likeness for its value rather than incidentally or for a newsworthy purpose?
• Can the plaintiff be identified from the publication?
• Did the defendant receive an advantage or benefit as a result of the appropriation?

See, e.g., Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). If the answer to all three questions is yes, then there has been an unauthorized use of an individual's name or likeness.

It is sufficient to satisfy the third prong of this test if the defendant's use of the individual's name likely led to some benefit, commonly commercial, that the defendant would otherwise not have received. The plaintiff generally does not need to prove that the defendant actually made a profit from the use, though the benefit cannot be purely incidental. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); Topheavy Studios, Inc. v. Doe, 33 Media L. Rep. 2192, 2005 WL 1940159 (Tex. App. Aug. 11, 2005).

DAMAGES

Statutory

For claims brought under Texas's statutory Right of Publicity, the statute provides for the following damages:

• the amount of damages the person who owns the property right sustained as a result of the unauthorized use or $2,500, whichever is greater;
• the amount of any profits from the unauthorized use that are attributable to that use (established by a showing of the gross revenue attributable to the unauthorized use minus any expenses that the defendant may prove);
• the amount of any exemplary damages that may be awarded; and
• reasonable attorney's fees and expenses and court costs incurred in recovering the damages and profits established by this section

Tex. Prop. Code Ann. § 26.013. 

Common Law

A plaintiff may recover general damages for a right of publicity/misappropriation claim, which may include claims for mental and physical pain and suffering. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980). Special damages and punitive damages may be recovered in exemplary and/or intentional cases, such as when the plaintiff's endorsement has been sold on the open market rather than used without authorization by the defendant alone. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980); see also Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997). 

LIMITATIONS AND DEFENSES

All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest. As mentioned above, the Texas statute also contains internal protections for speech by providing exceptions for art, books, uses of political or newsworthy value, and more. Tex Prop. Code Ann. § 26.012. Accordingly, courts often rely upon the statutory safe harbor rather than address the First Amendment defenses directly. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).

The First Amendment is more often applied in common law right of publicity cases brought by living individuals, given the lack of statutory exemptions. For example, in Busch v. Viacom, the court ruled that a fake endorsement as part of a news satire program that made use of a video clip in the public domain was a protected use of the plaintiff's name and likeness under the First Amendment's protection of parody. Busch v. Viacom, 477 F. Supp. 2d 764 (N.D. Tex. 2007).

Texas's statute also provides for a defense to a Right of Publicity claim if the user "has acted in reliance on the results of a probate proceeding governing the estate of the deceased personality in question." Tex Prop. Code Ann. § 26.015; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009); Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997). 

In addition, the property right holder's consent to the use of an individual's name or likeness bars recovery, though this may depend on the scope and form of the consent. See King v. Ames, 1997 WL 86416 (N.D. Tex Feb. 18, 1997); Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975). For example, one case was remanded to determine whether an athlete's consent to use of his name and likeness in an advertisement for a college football program extended to his likeness portrayed in a Coca-Cola advertisement included in that football program. See Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975).

The common law right of publicity claim is likely subject to Texas' general two-year statute of limitations for personal injury actions.  Whitehurst, 2009 WL 3052663 at *5 (citing Tex. Civ. Prac & Rem. Code § 16.003(a)). Although no case has yet addressed the limitations period applicable to the statutory right, it is likely that it would also be subject to the limitations period in Tex. Civ. Prac & Rem. Code § 16.003(a) as an injury to a property right.

This page covers legal information specific to the Commonwealth of Virginia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Virginia law generally forbids unauthorized use of a person's name or likeness for commercial purposes. There is no common law right of action for misappropriation or right of publicity in Virginia, but Virginia law does provide a statutory right of action against misappropriation. Because the statute contradicts prior common law, courts have applied the statute very narrowly.

It is also a criminal offense to use a person's name or picture for a commercial purpose without authorization in Virginia. A violation of Title 18.2, Chapter 6, Article 8, Section 216.1 of the Code of Virginia is a misdemeanor punishable by a fine of not less than $50, and not more than $1000.

Virginia codifies its statutory right against misappropriation at Title 8.01, Chapter 3, Article 3, Section 8.01-40 of the Code of Virginia. You should first familiarize yourself with that statute.

THE STATUTORY RIGHT

What the Statutory Right Against Misappropriation Protects

The statute, as it has been narrowly construed, provides a cause of action only when a "person, firm, or corporation" uses an individual's "name, portrait, or picture." Other identifying traits, such as voice or personality, and identifying descriptions do not trigger the cause of action. The statute also likely does not provide any protection to businesses or other legal or corporate entities. While the Supreme Court of Virginia has not addressed that question, local and federal courts have found that, within the context of the statute, the term "person" refers to an individual.

What Constitutes a Statutory Violation

The statute only prohibits use of person's name or image for trade or advertising purposes. Use for advertising purposes and for purposes of trade are distinct concepts.

Unauthorized use of a name or likeness for advertising purposes "has almost uniformly been held actionable" in Virginia. Town & Country Props., Inc. v. Riggins, 457 S.E.2d 356, 395 (Va. 1995). A name or likeness is used for advertising purposes when "it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service." Id. This can include a personal publication. In Town & Country Properties, the Supreme Court of Virginia held a real estate broker liable for attempting to generate interest in a property by distributing fliers advertising that a professional football player had formerly lived there, without permission from the player. A local Virginia court has also held that use of a person's name as part of a commercial web address violates the statute. Crump v. Forbes, 52 Va. Cir. 52 (Warren County 2000).

It is much more difficult to invoke the statute against a party for improperly using a name or likeness for purposes of trade. While "purposes of trade" is not defined in the statute or case law, courts most often discuss it in juxtaposition to newsworthiness. Courts have expressed concern that interpreting ‘purposes of trade' too broadly would discourage the uninhibited dissemination of ideas. For instance, in Falwell v. Penthouse International, the Court found that a magazine interview with a prominent figure was not used for purposes of trade, even though, like "everything that appears in a magazine" it was placed there with the intention of increasing sales. 521 F.Supp 1204, 1210 (Va. 1981). However, in Arlington v. New York Times Co. (New York law is very similar to Virginia law in this area, and Virginia courts frequently look to New York law for guidance. Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir. 1986) rev'd on other grounds sub nom Hustler Magazine, Inc. v. Falwell.), the New York Court of appeals found that, while a claim could not be sustained against a news publisher that used a citizen's image in conjunction with a news story, a claim could be brought against the photographer and agent who sold the picture to the newspaper. The court stated that a person "operating independently of [a] publisher" who engaged in "nonconsensual selling of [a] photograph" would have "commercialized the photograph in furtherance of his trade." 55 N.Y.2d 433 (1982).

The statute does not apply to general newsgathering. A person's name or image may be used to promote a report on a newsworthy event or matter of public interest as long as there is a real relationship between the use of a person's name or image and the report, and the report is not an advertisement in disguise. In WJLA-TV v. Levin, the Court decided that a television station did not violate the statute when it used the image of a surgeon who had been accused of sexually assaulting his patients in promotional announcements for a news segment regarding the allegations. The Court conceded the station may have used the promotions partially to increase its ratings during sweeps week, but concluded that the station had not violated the statute, because "[i]t is a newsworthy event and a matter of public interest when a physician is accused by his patients of sexually assaulting them." WJLA-TV v. Levin, 564 S.E.2d 383, 395 (Va. 2002).

Who Can Exercise the Statutory Right Against Misappropriation?

The person whose name or image has been used without consent can bring an action against the offending party within five years of the offense. For twenty years following a person's death, his or her likeness may not be used without the written consent of that person's survivors. Survivors may bring an action for misappropriation under this statute up to twenty years after the death.

DAMAGES

Individuals have the right sue for injunctions preventing offending parties from misappropriating their names and images, as well as, in some circumstances, the right to sue for damages both to compensate for injuries caused by the misappropriation and to punish the offending party.

1. Injunctive Relief

Section 8.01-40 allows a person whose identity has been misappropriated to ask a court to prevent the offender from continuing to use the identity, or, where potential misappropriation is discovered before the name or image is used, to prevent the potential offender from using the identity without consent.

2. Compensatory Damages

A person whose name or image has been misappropriated may sue to recover damages to compensate for any injury he or she suffered as a result of that misappropriation. It is unclear what qualifies as an "injury" under the statute. A celebrity who would generally expect a fee in return for an endorsement can clearly sue to recover the amount of a reasonable fee. In Riggins, the Supreme Court of Virginia affirmed the jury's decision to grant Riggins (a famous football player featured on a real estate flier without his consent) $25,000 in compensatory damages based on evidence that $25,000 would be a reasonable fee for use of his name and that Riggins had received fees for product endorsements running from $20,000 - $90,000.

While the Virginia courts frequently discuss the statute as protecting a property interest in a person's identity, which would indicate that a layperson could receive some minimal compensation for misappropriation of identity, the courts have not applied it in this way. Riggins is the only reported case awarding compensatory damages under this statute, and a Virginia circuit court has held that, under the plain language of the statute, a person can only recover compensatory damages if he or she can show that a quantifiable injury flowed from the misappropriation.

3. Punitive Damages

A jury may award punitive damages if the defendant knowingly used the plaintiff's name or likeness and the use violated the statute. The plaintiff does not need to prove that the defendant knew that he or she was engaging in illegal conduct or that that the defendant engaged in "wanton or malicious" conduct. Punitive damages cannot exceed $350,000. In Riggins, the court affirmed the jury's decision to grant Riggins an additional $25,000 in punitive damages (the court reduced the jury's award from $28,608, since that amount exceeded the amount of damages Riggins had requested).

LIMITATIONS AND DEFENSES

Constitutional

The Constitution prevents the publication of news from constituting a "purpose of trade" under the statute. As a U.S. District Court found in Falwell v. Penthouse International, if the "purposes of trade" requirement were construed to cover general newsgathering, it would "intrude on important constitutional freedoms, which guarantee the uninhibited dissemination of ideas." 521 F. Supp. 1204, 1210 (W.D. Va. 1981). In finding that a newspaper had not violated an assault victim's right to privacy under the statute by publishing her name as part of a news story, a Virginia circuit court held that, "[T]he right of the individual to privacy is limited by the public's right to have a free dissemination of news and information." Barker v. Richmond Newspapers, Inc., 14 Va. Cir. 421 (1973)

Common Law

The use of the plaintiff's name must be reasonably believable to fall within the statute's protection. If a name of image is used as part of a parody that is not reasonably believable, it is not used for advertising or trade purposes under the statute. In Falwell v. Flynt, the Fourth Circuit found that a comedic ad-parody was not reasonably believable when it featured the photo of a well-known reverend along with the text of a fictional interview in which he discussed an incestuous rendezvous with his mother in an outhouse. The add was not reasonably believable both because of its content and because it contained a disclaimer reading "ad parody-not to be taken seriously." 797 F.2d 1270.

The fact that the assertion made in the unauthorized material is true is not a defense to a claim under the statute. For example, in Riggins, the advertising fliers correctly stated that Riggins had lived in the house the real estate agent was selling. Yet the court decided that the right to print truthful information does not include the right to use that information for commercial purposes.

Statute of limitations

Claims under Virginia's statutory right of publicity are subject to a five-year statute of limitations as a claim for injury to property under Va. Code § 8.01-243(B). Lavery v. Automation Mgmt. Consultants, Inc., 360 S.E.2d 336, 339 (Va. 1987).

This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Washington's right of publicity statute, the Washington Personality Rights Act (WPRA), is codified at Wash. Rev. Code Ann. § 63.60. You should familiarize yourself with the statute, but note that certain elements of the law addressing the geographic reach of Washington's post-mortem right of publicity have been held unconstitutional by the United States District Court for the Western District of Washington (see Rights of the Deceased, below).

There is also a common law tort of appropriation in Washington. Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1113 (W.D. Wash. 2010). This tort appears to function comparably to the statutory right of publicity, but has been rarely addressed in courts applying Washington law.

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

The statute states that "every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness." § 63.60.010. Likeness includes depictions of "distinctive appearance, gestures, or mannerisms." Wash. Rev. Code Ann. § 63.60.020. "Photograph" includes both still photography and video that makes the individual "readily identifiable." § 63.60.020.

"Personalities" refers to individuals whose identities carry commercial value, such as celebrities. § 63.60.020. The United States District Court for the Western District of Washington has noted the ambiguity of this definition, as any individual's identity can be said to have value. Experience Hendrix, L.L.C. v. Hendrixlicensing.com, Ltd., 766 F. Supp. 2d 1122, 1131 (W.D. Wash. 2011).

What Constitutes a Statutory Violation

Statutory standards for infringement are codified at Wash. Rev. Code Ann. § 63.60.050. The unauthorized use of one's "name, voice, signature, photograph, or likeness" on goods, or for advertising or fund-raising purposes, constitutes infringement. In Experience, the court noted that while the statute only applies to goods sold in Washington, as written it applies to advertising or fund-raising anywhere. Experience at 1135. The statute also applies to those distributing infringing advertising within the state. The statute explicitly applies to both profit and non-profit endeavors. An infringement has not occurred if the owner gives written, oral, express or implied consent to the use of their identity.

In Dale v. Coors Brewing Co., 113 Wash. App. 1017 (2002), the Court of Appeals of Washington held that held that a former employee of a beer company could not claim appropriation against her employer for using her likeness on a poster because she had consented to the use. It further held that because she did not demonstrate the value of her image, nor present evidence of her employer's financial gain from the infringement, "her claims would fail for lack of damages." However, in State v. Hinkle, 131 Wash. 86 (1924), an early case that did not discuss rights of publicity or the tort of appropriation in those terms, the court noted that the "law will presume" damage from the use of one's name.

Statutory Exemptions

Exemptions are codified at Wash. Rev. Code § 63.60.070. Publications related to "cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody" do not qualify as infringement. Publications on these subjects are protected even if they are used in advertising, "if it is clear that the principal purpose of the advertisement is to comment on such matter."

In addition, the statute explicitly exempts certain uses, such as the following:

• "Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies."
• Various forms of media such as literature, theater, film, political campaigns, and online (see statute for complete list). Note that claiming endorsement by an individual in these contexts is not protected.
• Advertisements for certain works listed as exempt in the statute.
• Advertisements and packaging for various artistic works where the artist originally consented to incorporating their name.
• Advertisements or sale of works signed by the individual.
• Use of an identity as part of a description of something else, such as "a place, a legacy, a style, a theory, an ownership interest, or a party to a transaction or to accurately describe the goods or services of a party."
• An "insignificant, de minimis, or incidental use" of an identity.

An owner or employee of a platform in which infringing content was published as advertising is not liable, "unless the advertisement or solicitation was intended to promote the medium itself."

Incorporating the use of multiple identities, as opposed to just one, is not a basis for exemption. However, the individuals who have been infringed upon cannot bring their claim as a class.

Rights of the Deceased

The right of publicity is freely assignable and descends to a deceased person's heirs as property. Wash. Rev. Code § 63.60.030.

The right of publicity survives for ten years after the death of the individual. For "personalities," meaning celebrities and others whose identities carry commercial value, the rights survive for 75 years after death. Wash. Rev. Code Ann. § 63.60.040. A property right exists regardless of whether the right was commercially exploited while the individual was alive. § 63.60.030.

While the statute suggests that its directives addressing survivability and assignability apply regardless of the deceased individual's home state (‘domicile'), this language has been held unconstitutional. In Experience, the United States District Court for the Western District of Washington declared that the WPRA's choice of law provisions violated the Due Process, Full Faith and Credit, and Commerce Clauses of the U.S. Constitution. The court held that, as the statute would apply Washington law in situations where Washington lacked "significant contact" to the events and parties involved, the statute's choice-of-law provisions were "arbitrary and unfair," and therefore violated the Due Process and Full Faith and Credit Clauses. Moreover, as the choice-of-law provisions would allow Washington to apply its statutes to commercial transactions taking place outside of the state, they also violated the Commerce Clause. As a result, the court held that because Jimi Hendrix died while domiciled in New York, Washington law did not apply and ultimately his right of publicity did not descend to his heirs.

Damages and other remedies

Damages and other remedies are described in Wash. Rev. Code § 63.60.060. Courts can grant injunctive relief on "reasonable terms." Courts can also order the destruction of infringing products and elements of their creation process, such as molds or negatives.

Damages are calculated from the greater of $1,500 or the actual damages suffered by the plaintiff, plus the infringer's profits. To calculate profits, plaintiffs are required to prove defendant's revenues and defendants to prove their own deductible expenses. Each infringing work constitutes a single instance of infringement, regardless of how many copies were made or how many times the plaintiffs appear within.

"Washington expressly prohibits punitive damages as a violation of public policy unless explicitly authorized by statute." Jongeward v. BNSF R. Co., 174 Wash. 2d 586, 594, 278 P.3d 157, 160 (2012). As the statute does not include a reference to punitive damages, they are not available.

The statute notes states that "the remedies provided for in this section are cumulative and are in addition to any others provided for by law," suggesting that incremental common law damages may be assessed independently.

THE COMMON LAW RIGHT

Only one recent case explicitly addresses a plaintiff's common law tort of appropriation. In Aronson, the United States District Court for the Western District of Washington noted that while a common law cause of action existed for appropriation, it did not apply to "the publication of matters in the public interest" (see Defenses, below). Aronson at 1113.

In Dale, the plaintiff brought a WPRA claim and a claim for "common law invasion of privacy," presumably for appropriation, although the opinion does not specify. The Court of Appeals of Washington held that both claims failed as the plaintiff had consented to the use of her image.

These examples notwithstanding, there may be historical precedent for a successful common law right of publicity claim. In Hinkle, a case from 1924, the Supreme Court of Washington held that a political organization could not use the name of a politician against his will, and provided injunctive relief. The decision did not reference appropriation or a right of publicity by name.

DEFENSES TO THE STATUTORY AND COMMON LAW RIGHTS

In Aronson, a plaintiff depicted in a healthcare documentary claimed unauthorized misappropriation of his identity, citing both common law and the statute. The United States District Court for the Western District of Washington held that the documentary was both entitled to First Amendment Protection and exempted from the statute.

In Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992), the United States District Court for the Western District of Washington suggested that Washington law would protect the producers of a play that incorporated a recreation of a performance by a deceased blues singer, "especially given the fact that the Washington State Constitution places an even higher value upon the principle of free speech than the Federal Constitution." While the court did not apply a constitutional analysis, it did note "the clear direction in which constitutional law points," and cited a New York case holding that free speech considerations trumped the post-mortem right of publicity. Note that this decision was written prior to the enactment of the WPRA.

Although no Washington court has analyzed which statute of limitations applies to right of publicity claims in Washington, it is likely that the state's general three-year statute of limitations for injury to persons or property would apply. Wash. Rev. Code § 4.16.080(2).