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.
