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Revisiting the Right of Publicity

on Friday, 21 December 2018 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

Advertisements commonly include images of individuals, where the individuals may endorse a product, or merely just be incorporated into the advertisement. But such use of an individual’s image, name, or likeness in a commercial advertisement may implicate an individual’s right of publicity. Almost half of the states in the United States have codified right of publicity statutes with another handful of states protecting publicity rights of individuals through common law rights. Generally speaking, the right of publicity gives an individual the ability to control how their name or likeness, such as their picture, voice, or persona, is used in connection with commercial purposes without the consent of such person.

Nebraska law provides individuals a right of publicity that expressly allows the individual to control how their name or likeness is used. However, these rights of publicity are not without limit. For example, in Nebraska this right of publicity does not extend to the use of the individual’s name, image, or likeness in connection with newscasts, noncommercial advertisements, and general uses of an individual’s image as a member of the public.

In particular, the exception related to non-commercial advertising is derived from First Amendment rights. In general, First Amendment protection protects against both federal and state government from making laws restricting speech. This right conflicts with the right of publicity when speech is used for a purpose that is not deemed entirely commercial, and in these instances First Amendment rights are deemed to outweigh right of publicity laws. For example, in Cardtoons, L.C. v. Major League Baseball Players Ass’n, the 10th Circuit held that the sale of parody baseball cards was protected speech and an individual’s right of publicity could not be enforced against the producer of the cards, despite the fact that a producer made a profit. 95 F.3d 959 (10th Cir. 1996). While the intersection of the right of publicity and the First Amendment is nuanced and complex, as a general rule, when using an individual’s name, image, or likeness in an advertisement or other commercial use, releases should be obtained allowing for all of these uses.

AriAnna C. Goldstein

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