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).
