Feeling Minnesota: Has Prince’s Right of Publicity Disappeared?

In the unlikely event that any West Coast celebrities out there had been considering a move to Minnesota, an article published today on WealthManagement.com will give them pause. It makes the insightful observation that the late artist Prince’s decision to remain domiciled in his home state may have cost his heirs (whoever they turn out to be) the […]

PODCAST: 2016 Update on the Right of Publicity

This afternoon I presented to the Michigan IP Law Association on “The Good, the Bad, and the Ugly: Recent Developments in Right of Publicity Law.” Just over 30 minutes long, this speech gives a concise summary of what the Right of Publicity is, and how case law interpreting it has developed over the past few […]

Klout, Commercial Value, and the Right of Publicity

It was the Red Bull that got my attention.  Before then, I had “earned”” occasional “perks” through my Klout account–from brands I’d never heard of, like a new flavor of vodka or a romance novelist–but I hadn’t paid much attention to them. Red Bull, though, was a brand that meant something to me. And here […]

WOSML Chapter 2.C: Intellectual Property – Right of Publicity

Chapter 2: Intellectual Property

Contributors to This Page: Brian D. Wassom
Suggested Citation Form for This Page: Brian D. Wassom et al., Wassom on Social Media Law Chp. 2.C, available at <wassom.com/wosml-2c.html> (last edited Feb. 28, 2013)

C.  The Right of Publicity

The right of publicity is a state-law right that emerged from the common law of privacy to become more or less recognized as a form of intellectual property.  Although the particulars vary slightly from state to state, it is essentially the right of an individual to control the commercial exploitation of his or her likeness.  The best summary of the right of publicity as generally understood across the United States comes from the Restatement (Third) of Unfair Competition section 46: “[o]ne who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability.”

     1.  Commercial Value and Commercial Exploitation

The “commercial” aspect of this right is intentional.  It’s what distinguishes the use of someone’s likeness in creative expression like a movie or song–which is generally free speech privileged by the First Amendment–from commercial speech designed to advertise and sell goods or services, which is more akin to a trademark, and hence within the realm of governmental regulation and property rights.

In order to prevail on a publicity rights claim, therefore, a plaintiff must generally prove that her identity has “commercial value”–i.e., that there’s reason to believe that her identity would be worth something to an advertiser, or that a customer might be more likely to pay attention to a product because the plaintiff’s identity was associated with it.  For that reason, courts had long ruled that the right of publicity was only available to “celebrities,” and not the rest of us.

Today, however, the rise of digital (and especially social) media makes it entirely realistic to argue that we can all attain commercial value in some context.  One argument for establishing “commercial value” in social media is the value of personal relationships.  On many social media sites, the identity of the person with whom one interacts in social media both incentivizes people to participate in the site and adds qualitatively significant value to the experience. And the more such interactions that occur on a particular social media site, the more benefit the owner of that site derives (in terms of advertising revenue, search engine tie-ins, or whatever the site’s business model may be). Therefore, in a very direct and measurable way, some would argue, social media is a context in which literally every user’s identity has potential commercial value.

Judge Richard Seeborg of the United States District Court for the Northern District of California credited this argument in Cohen v. Facebook. That case involved Friend Finder, a service that a Facebook user can choose to employ by giving the system access to email accounts the user may have on other services. The system then searched the contact information in those accounts, compares it to the Facebook user database, and presented the user with a list of other Facebook users he or she already knows, but who are not among his or her Facebook friends. Plaintiffs objected to the use of their names and photos in the ads generated by the Friend Finder service.

Judge Seeborg credited the argument that Facebook’s “ability to earn advertising revenues and its valuation as a company are dependent on the size and involvement of its user base.”  Therefore, “the alleged misappropriation of plaintiffs’’ names and likenesses to promote the Friend Finder service was undertaken for Facebook’’s “‘advantage.’”  In a later opinion, however, the judge tempered this observation, “noting that this is not a situation where the defendant is alleged to have publicized the plaintiffs’ names or likenesses to any audience or in any context where they did not already appear.”  Rather. the plaintiffs’ likenesses were seen only by people with whom they were already friends.  Ultimately, Judge Seeborg dismissed the case (twice) because plaintiffs could not prove that their likenesses had any commercial value or that they had been harmed in any way.

Another case filed in the Northern District of California, Fraley v. Facebook,  involved a different Facebook feature—namely, “Sponsored Stories.” These advertisements “appear on a member’’s Facebook page, and which typically consist of another member’’s name, profile picture, and an assertion that the person ‘likes”the advertiser, coupled with the advertiser’’s logo. Sponsored Stories are generated when a member interacts with the Facebook website or affiliated sites in certain ways, such as by clicking on the  “Like” button on a company’’s Facebook page.”

Unlike Judge Seeborg, Judge Koh rejected Facebook’s suggestion that plaintiffs were required “to provide proof of preexisting commercial value and efforts to capitalize on such value in order to survive a motion to dismiss.” Rather, she ruled that “the appropriation of the identity of a relatively unknown person may result in economic injury or may itself create economic value in what was previously valueless.”  She also quoted multiple interviews in which Facebook executives described the power of personal relationships and the recommendations of trusted friends, treating these as admissions that users’ identities have commercial value.  Judge Koh cautioned, however, that it was still plaintiff’s burden to “prove actual damages like any other plaintiff whose name has commercial value.”

In Eagle v. Morgan (E.D. Penn. March 12, 2013), a banking company was found liable for infringing the publicity rights of its former CEO, Dr. Eagle.  When Eagle left her position, the company used her password to access her LinkedIn account and lock her out of it.  They then replaced her information with that of the new CEO.  For a period of several weeks, therefore, whenever someone searched for Eagle and followed the link to her profile, they found the information for her replacement instead.

This decision sheds more light on the types of evidence to which courts will look in determining whether an individual’s identity has “commercial value”–which is typically a prerequisite to the existence of actionable publicity rights–in today’s digital economy.  Here, the court found that Dr. Eagle’s identity “has commercial value due to her investment of time and effort in developing her reputation in the banking education industry. She testified that she is a published authority, has been quoted in others’ publications, and has presented at conferences. Further, … [she] had extensive experience in the banking education industry and generated substantial annual sales.”  Those factors could be applied just as easily to executives and professionals in all sorts of industries, meaning that this is risk factor that every employer should take to heart when publishing in social media.

    2.  Likeness

In this context, one’s “likeness” typically takes the form of one’s physical appearance, name, signature, or voice.  The Restatement expressly lists two examples of ways in which a person’s identity can be “indicated”: their “name” (which typically includes both the name itself and the person’s signature) and their “likeness,” or personal appearance.

But the common law includes in that term any other “indicia of identity.”  So a famous race car driver’s likeness was infringed by using a picture of his distinctive car.  Johnny Carson’s right of publicity was infringed by the product name “Here’s Johnny Portable Toilets.”  And Vanna White’s likeness was found to have been exploited by a robot turning the letters on a futuristic Wheel of Fortune set.
In February 2013, a circuit court judge in Oakland County, Michigan entered a temporary restraining order and (later) a preliminary injunction against a merchant selling hockey jerseys and other merchandise under the name PASHA.  “Pasha” is the nickname of Detroit Red Wings forward Pavel Datsyuk, and some of the items being sold bore his number 13 and the red-and-white Red Wings color scheme.

     3.  Infringement Online

“Social” media–which by definition is all about interacting with other individuals–is especially prone to abuses of individuals’ identities–especially with  billions of photographs available for instant download. In 2007, a 15-year-old Texas girl sued Virgin Mobile after learning that the company had found an unflattering picture of her on Flickr and used it in an Australian ad campaign. In June 2009, a Missouri couple discovered that a Christmas family portrait they had shared with relatives online had become an advertisement for a grocery store in the Czech Republic. Because the very point of “social” media is the exchange of personal information, photos, and other content,the percentage of such information that carries with it the potential for incorporating someone’s identity is much higher than in other forums.

     4.  Who Can Use Another Person’s Image?

When employees who actively use social media accounts to promote their employer’s business leave their jobs, it can lead to disputes over whether those accounts and their followers belong to the employer or employee. Several such disputes have arisen in recent months. When employers continue to operate these accounts after an employee leaves, it could give rise to a right of publicity misappropriation claim.

That is what happened after Jill Maremont was involved in a serious car accident in September 2009. Maremont managed the Facebook and Twitter presence of her employer, a Chicago interior design firm.  In Maremont’s absence, her employer appointed a replacement editor to manage the accounts.  She eventually sued, claiming, among other things, that the employer’s posts to these accounts in her absence unlawfully traded on the goodwill that she had personally built up through them, and confused her followers as to whether she or someone else authored the content.

Although her right of publicity claims survived the pleading stage, she eventually lost them on the merits.  Discovery ultimately showed that the employer announced Maremont’s accident through the social media accounts, identified the new editor as a temporary replacement, and Maremont herself thanked the replacement editor for her work after she regained control of the accounts.  Therefore, the employer “did not appropriate Maremont’s identity.”

By contrast, in concluding that the employer’s actions in commandeering Dr. Eagle’s LinkedIn account were unjustified, the court repeatedly points out that her employer–although clearly concerned about its employees’ social media presence–did not have a policy in place determining who owned the accounts.  The strong implication is that, if the employer had adopted and Eagle had signed a policy making clear the employer’s right to control the account, the result may well have been different.  Obviously, we lawyers can’t say it enough: employers, you need to implement a clear social media policy before issues like this arise.

In early 2012, luxury fashion retailer Burberry took advantage of Facebook’s then-new “Timeline” chronological display to showcase the use of its products by historical celebrities over time.  The timeline began with the launch of the first Burberry store in 1856. Under the 1942 header, Burberry posted a photo of the actor Humphrey Bogart with the caption, “Humphrey Bogart wearing a Burberry trench coat in the final scene of Casablanca.” Burberry had licensed the copyright in the image, but an entity claiming to own Bogart’s posthumous publicity rights threatened to sue for misappropriation of his likeness. In May 2012, Burberry filed a declaratory judgment action in New York seeking to confirm its right to use the image.The Bogart entity countersued for misappropriation of publicity rights and related claims. Both suits were later resolved out of court without adjudication.

     5.  What About the First Amendment?

Judge Koh’s Fraley opinion may have been the first to attempt to balance publicity rights and free speech rights in the social media context.  Facebook had argued that the information it shared in “Sponsored Stories” concerning users’ “likes” and activities was were “newsworthy because (1) Plaintiffs are ‘public figures’ to their friends, and (2) ‘expressions of consumer opinion’ are generally newsworthy.” California’s publicity rights statute includes exceptions for “”use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.”” “This First Amendment defense extends to ‘almost all reporting of recent events,’ as well as to publications about ‘people who, by their accomplishments, mode of living, professional standing, or calling, create a ‘”‘legitimate and widespread attentionn’ ‘ to their activities’ ””—i.e., to “public figures.”

Facebook cleverly attempted to turn plaintiff’s’ assertion of commercial value on its ear. If plaintiffs are “celebrities” in the eyes of their friends, it argued, then, as “celebrities,” they are newsworthy individuals, and the reporting of their actions via Sponsored Stories is news reporting protected by the First Amendment.

Judge Koh “agree[d] with [Facebook] that Plaintiff[s] ‘cannot have it both ways’ — Plaintiffs cannot assert economic injury under the theory that they are ‘celebrities’ to their Facebook Friends, while at the same time denying that they are ‘public figures’ to those same friends for newsworthy purposes.” But she did not give the argument as much import as Facebook did. “[E]ven newsworthy actions,” she held, “may be subjects of [misappropriation] liability when published for commercial rather than journalistic purposes.”  That assertion raises some red flags among First Amendment advocates, and is certainly subject to being tested and qualified by future case law. But Fraley demonstrates that First Amendment considerations will not always protect against liability for misappropriation of publicity rights.

 6.  Damages

Proving the value of a person’s identity–especially when that value was derived online–has proven tricky.  There is not yet any set formula for reaching a valuation.

In 2012, the parties to Fraley v. Facebook announced a settlement by which Facebook would pay $10 million to nonprofit groups and up to $10 million in attorneys’ fees.   This settlement generated at least as much publicity as the lawsuit itself when the court rejected it as insufficient.  The court later approved a settlement under which $20 million would go directly to Facebook users instead.

By contrast, Dr. Eagle’s victory was a Pyrrhic one.  Although she prevailed on multiple counts stemming from the misuse of her likeness, she was awarded a grand total of $0.  Why?  Because she couldn’t prove that she’s actually been harmed by the diversion of LinkedIn traffic.  That wasn’t for lack of trying; Eagle presented detailed reports of her sales revenue for the year in question, and analysis of it had dipped.  But the court found her explanation connecting those figures to the employer’s actions “nothing more than creative guesswork based on mere speculation.”  Similarly, the court refused to award punitive damages, because Eagle did not present evidence suggesting that her employer had acted out of a malicious intent to injure her.

Bodies as IP: Does the Right of Publicity Objectify Women?

This article poses a question to which I honestly don’t know the answer: is it good public policy to say that being physically attractive is all someone needs to have an enforceable right of publicity?  On one hand, defining the right of publicity in that way empowers attractive people (almost always young women) to stop […]

Cutting-Edge Diva: Virtual Assistants and the Right of Publicity

Inspiration can come from the most unlikely of sources.  Newton, for example, is reputed to have worked out his theory of gravity when an apple fell on his head. And I got the idea for this blog post from watching the latest episode of Drop Dead Diva, a legal dramedy on the Lifetime Network. Let’s […]

[RESOURCE] The Right of Publicity in Michigan

Just in time for my presentation today to the Michigan Intellectual Property Association, I’ve added to this blog some resources on Right of Publicity law in Michigan.  This new section contains summaries of virtually every Michigan and Sixth Circuit case on the Right of Publicity, copies of relevant bills from the Michigan legislature, and more.  […]

Michigan and 6th Circuit Case Law on the Right of Publicity

Last Updated: January 7, 2012.  Click here to download in PDF.


Michigan Courts

  • Pallas v Crowley, Milner & Co., 322 Mich 411 (1948).  First Michigan case to recognize misappropriation of likeness as one of the four elements of the invasion of privacy tort.  Plaintiff was a woman whose photo was used in advertising for defendant’s products.  Court vacated dismissal of claim and remanded for trial.  But also recognized First Amendment limitations, noting a “fundamental difference” between use of likeness in advertising and in a legitimate news story.

 

  • Pallas II, 334 Mich 282 (1952).  Affirmed jury verdict for defendant.  Plaintiff lost because she was a model who consented to her photograph being taken.

 

  • Edwards v. Church of God in Christ, 2002 Mich App Lexis 390 (March 8, 2002).  Plaintiff was member of church choir whose performance was recorded and published on a CD.  Distinguishing federal cases that held in favor of Tom Waits and Bette Midler for use of their voices, the court refused to recognize a right of publicity in an unknown singer’s voice.  Although the court did not put it in these terms, it essentially found that plaintiff’s voice had no commercial value.  The court did, however, allow a claim of “negligent recording” to survive.

 

  • Eadara v. Henry Ford Health Systems, 2004 Mich App Lexis 384 (February 10, 2004).  Defendant doctor cited the plaintiff doctor’s name in a grant proposal.  Plaintiff’s right of publicity claim was dismissed because his name was not used for pecuniary gain.

 

  • Battaglieri v. Mackinac Center for Public Policy, 261 Mich App 296 (2004).  Plaintiff was president of the Michigan Education Association.  Defendant think-tank quoted (and criticized) plaintiff in a fund-raising letter.  Although defendant used plaintiff’s image for pecuniary gain, it did so in the course of speech on matters of legitimate public concern.  Therefore, relying on the Restatement and an assortment of cases from other states, the court held the letter privileged by the First Amendment as “newsworthy” speech rather than a “use in trade.”

 

  • Bowens  v. Aftermath Entertainment, 2005 Mich. App. Lexis 988 (April 19, 2005).  Plaintiffs were Detroit police officers and city officials who suppressed a video that Defendants had intended to play during their concert at Joe Louis Arena.  Defendants caught the exchange on film, and used the footage to create a documentary on the incident.  Following Battaglieri, Nichols, and Ruffin-Steinbeck, the court dismissed Plaintiff’s right of publicity claim, finding the documentary to be newsworthy speech privileged by the First Amendment.  (Note: Subsequent appeals were on separate issues.)

 

  • Arnold v. Treadwell, No. 283093 (Mich. App. July 16, 2009).  Plaintiff was a stripper and aspiring model who posed for a photo shoot with Defendants, who later submitted some of the pictures for publication in a men’s magazine.  Although her publicity claim was dismissed by the trial court, the Court of Appeals reversed.  It found a genuine question of fact as to whether Plaintiff’s image had commercial value, supported by (1) the fact that Defendants submitted the photos for publication, and (2) Plaintiff’s past work as a fashion model, extra in a music video, and a stripper.

 

Sixth Circuit

  • Memphis Development Foundation v. Factors ETC, Inc., 616 F.2d 956; 1980 (6th  Cir. 1980).  Held as a matter of first impression, based on public policy and Tennessee law, that the right of publicity is not descendible.

 

  • Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983).  Seminal case that found a right of publicity in Michigan common law.  Plaintiff Johnny Carson sued over use of the phrase “Here’s Johnny” in association with toilets.  The court found the phrase sufficiently evocative of Carson’s identity.  Notes that the right is only for celebrities.

 

  • Carson II, 1983 U.S. App. Lexis 30004 (6th Cir. March 2, 1983).  Denies rehearing, confirms that Pallas recognizes a right of publicity.

 

  • Reeve v. United Artists Corporation, 765 F.2d 79 (6th Cir. 1985).  Plaintiff was the estate of a boxer whose famous bout was recreated in the film Raging Bull.  Court dismissed on the basis that the right is not descendible in Ohio, thus avoiding “difficult First Amendment issues.”

 

  • Carson III, 810 F.2d 104 (6th Cir. January 26, 1987).  Upholds damages award in the amount of defendant’s profits, and a nationwide injunction.

 

  • Elvis Presley Enterprises, Inc. v. Elvisly Yours Inc., 817 F.2d 104 (6th Cir. April 28, 1987).  Acknowledged that Tennessee courts had rejected Memphis Dev. Found. and held the right of publicity to be descendible.

 

  • Cawley v. Swearer, 1991 U.S. App Lexis 13536 (6th Cir. June 20, 1991).  Defendant plagiarized plaintiff’s work.  But publicity claim was dismissed because plaintiff did not allege that defendant exploited his likeness for commercial gain.

 

  • Elvis Presley Enterprises II, 936 F.2d 889 (6th Cir. 1991).  The Court narrowed an injunction against “all uses” of Elvis’s image to prohibit only commercial uses (and specifically exempting protected speech activity) and limited the global scope to “the United States and its possessions.”  On the facts of the case, the court also rejected the defenses of laches and acquiescence.

 

  • Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir. 2000).  Plaintiff was a character actor who appeared in the movie Predator.  Defendant published a set of “Micro Machine” toys based on the movie, including one based on Plaintiff’s character.  Citing Carson, the court held that the right is only for celebrities, and that Plaintiff had not proven that his likeness had commercial value.  The Court rejected a copyright preemption defense.  It also commented that case law from all jurisdictions should be considered, although it rejected a 9th Circuit case that permitted actors to assert rights in the characters they play.  Also rejected a Lanham Act false designation of origin claim.

 

  • Ruffin-Steinback v. de Passe, 267 F.3d 457 (6th Cir. 2001).  Plaintiff, a member of the Temptations, sued over his portrayal in a TV mini-series about the band.  Adopting the district court’s reasoning and its reliance on the Restatement, the court found the mini-series to be First Amendment privileged speech rather than a use in trade.

 

  • Herman Miller, Inc. v. Palazzetti Imports and Exports, Inc., 270 F.3d 298 (6th Cir. 2001).  Defendant violated plaintiff’s right to use the “Eames” name with chairs.  The court noted that the right of publicity limits what might have otherwise been “fair use” under the Lanham Act.  The opinion contains a lengthy rejection of the laches and acquiescence defenses on the facts of the case.  Tracing the evolution of common law since Memphis Dev. Found., the court found a descendible right of publicity in Michigan.  The court followed Elvis Presley Enterprises in restricting the scope of the injunction to commercial, non-speech uses, but excepted states that explicitly refuse to recognize a post-mortem right of publicity.

 

  • Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).  Found a genuine question of fact regarding whether Defendants violated Rosa Parks’ right of publicity by naming a song that had nothing to do with her “Rosa Parks.”  The court noted that, because the right of publicity is broader than the rights protected by the Lanham Act, it is more likely to impinge on a defendant’s First Amendment rights.  But, after lengthy analysis, the court was not convinced that Defendants’ use of the name was commentary or that it had artistic relevance to the song.

 

  • ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003).  Defendant painted a montage of various events in Tiger Woods’ career.  The court found the paintings to be non-commercial speech privileged by the First Amendment.  It also rejected a Lanham Act false endorsement claim (which, for the purposes of this case, it treated as virtually equivalent) on First Amendment grounds, noting that the expressive quality of the work made likelihood of confusion irrelevant.  The case contains a lengthy explanation of the public policy behind the right of publicity, and the reasons for its transfer from the Restatement of Torts to the Restatement of Unfair Competition.  The court found an “inherent tension” between the right of publicity and the First Amendment, and undertook a broad examination of relevant case law from across the country.

 

  • Andretti v. Borla Performance Industries, Inc., 426 F.3d 824, (6th Cir. 2005).  Refused to award damages where plaintiff could not prove injury.  But upheld a worldwide injunction.

 

  • Hauf v. Life Extension Foundation, 09-1938 (6th Cir. Dec. 27, 2011).  Upheld dismissal of plaintiff’s publicity claims on the ground that they had signed a valid release.  (Note: This may answer the district court’s observation in Armstrong, infra, that there is no 6th Circuit law defining “consent” in the right of publicity context.)

 

Eastern District of Michigan and Western District of Michigan

  • Janda v. Riley-Meggs Inc., 764 F. Supp. 1223 (E.D. MI 1991).  Defendant used name of Plaintiff researcher in a manner that suggested he endorsed Defendant’s product.  Court allowed right of publicity claim to proceed.  Opinion is short on analysis, but it does note that use of plaintiff’s name increased defendant’s sales.

 

  • Ruffin-Steinback v. de Passe, 17 F. Supp.2d 699 (E.D. MI 1998).  First Amendment prohibits TRO or preliminary injunction against publication of TV mini-series.

 

  • Ruffin-Steinback II, 82 F. Supp. 2d 723 (E.D. MI 2000).  Goes into greater detail than the 6th Circuit (which adopted the district court’s reasoning) as to why the unauthorized depiction of a person’s life story is protected by the First Amendment.  Relies heavily on the Restatement.

 

  • Nichols v. Moore, 334 F. Supp. 2d 944 (E.D. MI 2004).  Plaintiff James Nichols sued Michael Moore over use of Nichols’ image in the movie Bowling for Columbine.  Citing Pallas, among other cases, the court held the claim barred by First Amendment because subject matter was matter of legitimate public concern.  Same privilege extends to advertising for the movie.

 

  • Neal v. Electronic Arts, Inc., 374 F. Supp. 2d 574 (W.D. MI 2005).  Athlete sued over his depiction in the Madden NFL video game.  Claim was barred, because plaintiff had licensed the rights to his likeness to another entity that had approved the use.

 

  • Ouderkirk  v. People for the Ethical Treatment of Animals, Inc., 2007 U.S. Dist. Lexis 29451 (E.D. MI March 29, 2007).  PETA activists gained access to a chinchilla ranch under false pretenses, took video footage, and used it to expose alleged animal cruelty.  Plaintiff ranchers sued over use of their likeness in the video.  Following Battaglieri, the Court found the video to be advocacy speech on matters of legitimate public concern protected by the First Amendment.

 

  • Hauf  v. Life Extension Foundation, 547 F. Supp. 2d 771 (W.D. MI 2008).  Plaintiffs were a mom and son.  The son had overcome cancer using Defendant’s supplements.  The mom then became an activist for cancer patients.  Defendant used plaintiffs’ recovery story in its membership campaign literature.  The court allowed the claim to proceed, despite a lack of evidence supporting damages, finding it possible that the plaintiffs could demonstrate that their likenesses had commercial value among the cancer patient or alternative medicine communities.  (Note, though, that the court applied the “no set of facts” interpretation of Rule 12(b)(6).  The claim might not have survived under the stricter Twombly/Iqbal standard.)

 

  • Romantics  v. Activision Publishing, Inc. 532 F.Supp.2d 884 (ED MI 2008) (denying preliminary injunction); 574 F. Supp. 2d 758 (E.D MI 2008) (granting summary judgment).  Plaintiff band sued over use of their song “What I Like About You” in the video game Guitar Hero.  Plaintiffs did not own the song copyright, but claimed that the performers in the game sounded so much like Plaintiffs as to infringe their “unique sound.”  Citing Edwards, the court doubted whether Michigan recognized a right of publicity in a person’s voice.  Regardless, such a right could only extend to the Plaintiffs’ actual voices, not their “style” of singing the song.  Additionally, the court found the claim barred by both the First Amendment and copyright preemption.  It also found no confusion to support a false endorsement claim.

 

  • Armstrong v. Eagle Rock Entertainment, Inc. 655 F.Supp.2d 779 (E.D. MI 2009).  Plaintiff was one of more than a dozen members of the jazz-fusion band Mahavishnu Orchestra. Defendants released on DVD a 35-year-old recording of a performance by the band that included Plaintiff.  Plaintiff was also visible in a photo on the DVD packaging.  The court found it possible that Plaintiff could establish commercial value.  It found a material question of fact as to whether the plaintiff consented to the recording.  The court held the use of Plaintiff’s picture on the packaging to be protected by the First Amendment, but that under Zacchini v. Scripps-Howard, 433 US 562 (1977), the First Amendment allowed the claim to proceed as to the performance itself.  Nevertheless, the court found that claim preempted by the Copyright Act.  Finally, the court treated plaintiff’s “false designation” claim as one for “false endorsement,” and held this claim barred by the First Amendment under ETW.

 

  • Chambers v. Ingram, No. 09-14731 (E.D. Mich. Aug. 4, 2010).  Dismisses right of publicity claim on preemption grounds where the claim “appears to concern only the use of Billy Joe Chambers’ picture and/or likeness in the publication; therefore, it is entwined with the [copyright] infringement claims (following Romantics v. Activision Publ’g, Inc.).  (Note: subsequent orders in case deal with other claims.)

 

Click here to download this summary in PDF format.

Right of Publicity in Michigan

The Right of Publicity is an odd creature.  Its origins are in the common law of privacy, but it is now listed in the Restatement on Unfair Competition Law.  It is generally considered a form of intellectual property, yet it is the subject of state law, not federal.  Only slightly more than half of the states have even recognized the right, and its exact parameters vary from jurisdiction to jurisdiction.  For that reason, when I speak on this subject–as I have several times–I often refer to the Right of Publicity as “The Red-Headed Stepchild of IP Law.”

Image from the seminal 6th Circuit decision Johnny Carson v. Here's Johnny Portable Toilets

Nevertheless, this right “Deserves a Second Look,” as the subtitle of my presentation goes on to say.  Generally defined, the Right of Publicity is “the right to control the commercial use of one’s personal likeness.”  The internet, digital publishing, and social media have made it incredibly easy to imitate other people and cut and paste their personal images.  This will only accelerate the number of Right of Publicity lawsuits, as I predicted in a recent Mashable article.

Because the Right of Publicity is a creature of state law and Michigan is the state in which I’m licensed to practice, I’m keenly interested in the status of Michigan law on this subject.  Michigan courts recognize the right, but several attempts to pass a state statute on the subject have failed.  Moreover, most of the decisions interpreting Michigan’s Right of Publicity come from federal, rather than state, courts, which means they are potentially subject to reinterpretation by Michigan judges.

Resources

  • State and Federal Case Law on Michigan’s Right of Publicity.  Click here to read summaries of every relevant state and federal decision of which I’m aware, and click here to download the document in PDF.
  • Copies of Right of Publicity legislation introduced in the Michigan legislature in 2007 (House / Senate), 2008, 2009, and 2010.
  • Click here to read all of my blog posts regarding the Right of Publicity.

 

Social Reading Raises New Copyright and Publicity Rights Issues

The following is paraphrased from a talk I gave at the International Digital Publishing Forum’s 2015 Digital Book Conference in Manhattan. Recent Innovations in Social Reading “Social reading” is a publishing industry buzzword that has come to encompass a variety of methods for using digital platforms to expand the reading experience. This includes such simple features […]