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.