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).