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What Is the Right of Publicity?

There is a common misconception that celebrities have given up their right to privacy and autonomy by becoming famous and living in the public eye. This couldn’t be further from the truth. The right of publicity is the legal protection for these rights, and it doesn’t only apply to celebrities.

At Angie Avard Turner Law, LLC, we work to protect what you create. Famous or not, your work and likeness have protection under the law. If you’re ready to explore the best steps for you and your business, reserve a time to talk, and we’ll get started.

Did You Hear the One About the Human Cannonball?

To illustrate how the right of publicity works in real life, here’s a little story of a human cannonball.

Hugo Zacchini was a member of a circus family, traveling the world with his parents and siblings to perform death-defying stunts. Zacchini’s specialty was the Human Cannonball act. Hugo’s father had revolutionized the feat by inventing the first compressed-air cannon in 1922.

While he was still a teenager, Hugo was repeatedly launched from the Zacchini cannon, and he was particularly good at flying through the air. By the late 1920s, Hugo had moved to America and become a main draw for the Ringling Bros. and Barnum & Bailey Circus. This act went on for decades!

Hugo Zacchini, the Human Cannonball, was part of the first right of publicity case to go to the US Supreme Court.

Fast forward to 1971 and the Geauga County Fair in Burton, Ohio. At this event, a local television station filmed Hugo’s cannonball act despite his objections. The shot was 15 seconds long, and the station aired it on their nightly news program.

The Zacchini family was not happy. They argued that airing the whole stunt damaged their financial interests. Why would someone pay to see the act live when they can see it from the comfort of their living room?

This event kicked off one of the most famous right of publicity cases in history. It is the only right of publicity lawsuit to make its way to the U.S. Supreme Court. In 1977 the highest court in the land heard the arguments after the Ohio Supreme Court upheld the TV station’s right to air the stunt under the first amendment.

In a 5-4 decision, the court ruled in favor of the human cannonball. The Zacchini family’s right to control their intellectual property overrode the station’s first amendment rights.

This story gives a perfect understanding of the right of publicity. In short, it protects a person’s right to control the commercial use of their likeness, image, persona, and voice. By and large, this legal determination exists at the state level. But as the Zacchini case shows, it can go up the chain of command if needed.

Right of Publicity Protects Everyone

The right of publicity applies to everyone, not just celebrities.

Although we tend to connect the right of publicity to celebrities, it actually extends to everyone. It’s just that typically, it only comes up when someone is trying to make money off a famous person’s likeness or voice. After all, a t-shirt with The Beatles’ faces on it is more likely to make money than one with my face.

The right of publicity does not cover tangible intellectual property the way copyright does. Rather than protecting a creation such as a song or painting, the right of publicity encompasses the intangible recognizability of a person - their photo, video, likeness, or voice.

This area of intellectual property can feel confusing because there isn’t a federal statute to govern it. About half of the states have statutes regarding the right of publicity. Others include this concept under their laws surrounding the right to privacy.

Right to publicity suits are almost always civil cases at the state level. Occasionally, they may meet a state’s misdemeanor qualifications.

This area of IP has evolved through case law over the generations, and with recent technological advances, it’s changing rapidly. Current situations, such as the rise in NFTs and Deepfake technology, are forcing case law to move fast. And sometimes, it can’t keep up with the changes.

Deepfake technology is making murky legal waters.

The right of publicity is similar to a trademark since they both protect things that are identifiable with a person or brand. But whereas a trademark covers things like logos and phrases, the right of publicity covers the look and sound of a person.

How the Right of Publicity Impacts Entrepreneurs

When you own a business, getting your name into the marketplace is crucial. It can be tempting to use celebrity images or impersonations to attract a crowd. But doing so without their permission could be devastating to you and your business.

The right of publicity tends to come up a lot in the fashion industry. Boutiques, designers, and bloggers may use images of celebrities to illustrate certain looks. This practice can lead to lawsuits in a hurry.

Some entrepreneurs mistakenly think that no one will pay attention to what their “little” business is doing online. But the reality is that many celebrities have teams of people whose job is to do just that. They hunt for unauthorized uses of the person’s voice, image, or likeness.

Using or mimicking a famous voice in marketing materials is one of the most common issues behind right of publicity claims. In one famous case, Bette Midler sued the Ford Motor Company. She had turned them down as a spokesperson, so they went out and hired someone who sounded a lot like the Divine Miss M. The courts ruled in her favor.

Even voices fall under the protection of the right of publicity.

Another well-known case revolves around a toilet bowl manufacturer who used the Johnny Carson introduction “Heeeeere’’s Johnny!” without permission. Even though Johnny himself was not responsible for the phrase, the ruling went his way.

On the flip side of this, you also have a right to protect the commercial use of your image, likeness, or voice. You don’t have to be famous to invoke this right. If someone infringes on this right, you can pursue a legal solution.

Protection Is the Key

There is considerable precedent for the right of publicity, but it is subject to significant change. With all of the high-tech questions hanging over the current understanding of this right, it can be challenging to navigate.

When in doubt, proceed with extreme caution. The hassle and financial impact of a lawsuit are not worth the use of a clever marketing tactic.

Having legal counsel on your side is the best way to protect yourself and your company. Angie Avard Turner Law, LLC helps you guard your work through copyrights, trademarks, contracts, and legal advice. We offer ongoing support and legal subscription services to help you navigate all of these areas. Choose your time to chat, and let’s get started!


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