Right of Publicity Intellectual Property
The right of publicity intellectual property is a form of IP right that protects individuals from the misappropriation of their personal identity.3 min read
2. Personal Attributes as Trademarks
3. Protection Against Unfair Competition
The right of publicity intellectual property is a form of IP right that protects individuals from the misappropriation of their names, likeness or other forms of personal identity for the purpose of commercial benefit. Although the specifics of this law vary by state, it generally means that individuals are granted the right to control the commercial use of their identity.
The Right of Publicity
In the U.S., the right of publicity hasn't been recognized by case or statute law at the federal level; however, under the federal unfair competition law, there is a statutory right that protects against false affiliation, association or endorsement. In the majority of states, the right of publicity is recognized by case and/or statute law.
This right extends to personal attributes and all forms of persona or identity including photographs, likeness, signature, voice, pseudonyms, nicknames and names. However, the states which recognize the right of publicity are divided on a number of issues, including:
- Whether the right is assignable, inheritable and descendible.
- Whether the right of publicity survives posthumously, and if it does, for what length of time.
Outside the U.S., “rights of persona” and “personality rights” are some of the terminologies used to describe the rights of publicity. The scope and source of these rights usually vary.
Personal Attributes as Trademarks
A person's personal attributes such as name and likeness can be developed into a trademark by registration and proper use. As such, a number of celebrities register their likeness and names as trademarks. When considering the issues related to the right of publicity, other issues such as defamation claims, privacy claims, and copyright may arise.
The aspect of the law describing the right of person or publicity is a developing and evolving one that is similar to trademark law. It also affects trademark owners and by extension, concerns the INTA. According to the 2nd restatement of torts, rights of publicity, unreasonable publicity, invasions of privacy, and false light are closely related to appropriation of likeness or name.
At this point, laws governing the right of publicity do not exist at the federal level. However, more often than not, cases involving the right of publicity end up in federal court. For issues concerning rights of publicity to arise, one doesn't have to be famous — or even alive. In 12 U.S. states, rights of publicity survive the death of the individual whose likeness is being used; however, the length of time it survives depends on the wording of the governing statute.
For individuals whose names (or the names of their loved ones) are being exploited for commercial gain, it's a good idea to learn about the rights of publicity and how to go about protecting it. The right of publicity is one of the newest intellectual property rights laws in the U.S. It allows celebrities and other individuals to control how their name and likeness is used for commercial purposes. The rights of publicity exist alongside trademark and unfair competition rights.
Protection Against Unfair Competition
Rights of publicity and trademarks are closely related since they both prevent unfair competition by suggesting a connection between two distinct entities where such connections do not exist. For instance, fake celebrity endorsements.
In both aspects of the law, the aim is to halt unfair gain by using something that individuals associated with another's business. However, there are cases involving rights of publicity that require a more copyright type of analysis. For instance, when an individual's name is used as the name of a Facebook page, Twitter handle, smartphone app, video game character, or YouTube channel.
Also, the likeness, picture or portrait of an individual can be in digital format and used in any of the aforementioned scenarios, in addition to appearing as an avatar on mobile apps, cell phone wallpaper or in a YouTube video. Although some of the use cases mentioned are not actionable ostensibly, there are infinite ways one can run afoul of the rights of publicity laws on social media.
As such, critics are clamoring for laws that narrow the scope afforded rights of publicity protection or a more uniform approach to its application.
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