The Firm handled a right of publicity/misappropriation of image and likeness case in 2008. During the course of the representation, suits were filed in state courts in Maryland and Delaware and in a federal district court. Causes of action for: (1) common law invasion of privacy – misappropriation of likeness for commercial purposes, and (2) unjust enrichment were brought in the suit filed in a Maryland circuit court. The matter was resolved, and it is governed by confidentiality. Frank Gorman, Ryan Burch, and Neal Dongre worked on the engagement and representation.
This area of law has received a lot of attention lately and over the past several years because of the decision in Christoff v. Nestle USA, Inc., which involved a right of publicity claim governed by California law. Based on our experiences, we can share with you the general principles of law in this area.
The right of publicity is defined as the inherent right of every human being to control the commercial use of his or her identity. The right of publicity is based in state law and, when recognized, creates an intellectual property right that when infringed upon is a commercial tort of unfair competition. The right of publicity has been recognized by various states through common law or statute, or both. Maryland, like most states, does not explicitly recognize a right of publicity. Maryland does, however, recognize a cause of action based in the right of privacy which may arise from the same facts as a right of publicity claim.
The leading Supreme Court decision in this area is Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). This case concerned a television news station that taped and rebroadcast an entire 15 second “human cannonball” act performed by Zacchini. Although the Court’s holding did not turn on the constitutionality of the right of publicity, the court treated the cause of action as viable and used the term “right of publicity” several times throughout the opinion. This treatment by the Supreme Court led other courts to begin to recognize the common law right of publicity.
Eight states currently have statutory provisions on the books which encompass the right of publicity. These states are: California, Florida, Illinois, Kentucky, Ohio, Pennsylvania, Texas, and Wisconsin. Ten states have statutes which, although labeled as privacy statutes, are worded such that they effectively encompass most of what is known as the right of publicity. These states are: Indiana, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Virginia, and Washington.
There are currently eighteen states whose courts have recognized a common law right of publicity. Only Nebraska and New York courts have expressly rejected a common law right of publicity, although the New York legislature later reversed the commons law prohibition by statute. The eighteen states that have recognized a common law right of publicity are: Arizona, Hawaii, Michigan, Alabama, Illinois, Minnesota, California, Kentucky, Missouri, Connecticut, Texas, New Jersey, Florida, Utah, Ohio, Georgia, Wisconsin, and Pennsylvania.
Most other states, while not explicitly recognizing a right of publicity, do recognize a cause of action grounded in the right of privacy. In these states, the right of privacy gives rise to a claim for invasion of privacy from the unauthorized appropriation of a person’s name or likeness. It is important to note that the injury to one’s right of privacy may be seen as limited to injury to a person’s human dignity and psyche, while injury to one’s right of publicity may extend, under the appropriate circumstances, to the commercial value of one’s identity. Therefore, the damages awarded in a successful privacy claim may be measured only by the plaintiff’s mental or physical distress and related damages.
The Court of Appeals of Maryland, like the majority of states, has recognized the tort of invasion of privacy through appropriation of another’s name or likeness. Lawrence v. A.S. Abell Co., 475 A.2d 448, 450-51 (Md. 1984); see also Barnhart v. Paisano Publications, Inc., 2006 WL 2972570, p. 4-5 (D. Md. 2006) (applying Maryland law); Comins v. Discovery Communications, Inc., 200 F. Supp. 2d 512, 523 (D. Md. 2002) (applying Maryland law). In recognizing this tort, the Maryland Court of Appeals, to date, has limited the scope of such a claim to those cases where the name or likeness appropriated has commercial value and where such appropriation is not incidental. Lawrence, 475 A.2d at 453-54.
Causes of Action
The primary common law causes of action relating to use of one’s identity, depending on the jurisdiction, include infringement of the right of publicity, invasion of privacy by appropriation of name or likeness, and unjust enrichment. States with statutes on the right of publicity and/or the right or privacy may also provide statutory causes of action.
To establish a prima facie common law claim for infringement of one’s right of publicity, a plaintiff should establish that they own an enforceable right in the identity or persona of a human being. A plaintiff should then demonstrate that the defendant, without permission, has used some aspect of their identity or persona in such a way that the plaintiff is identifiable from the defendant’s use, resulting in damage to the commercial value of that persona. In a jurisdiction with a statute covering the right of publicity, the complaint should track the language of the statute.
To establish a prima facie case of liability for invasion of privacy through misappropriation, the plaintiff should establish that the defendant, without permission, used some aspect of the plaintiff’s identity or persona in such a way that plaintiff is identifiable from defendant’s use and that the defendant’s use caused some damage to plaintiff’s peace of mind and dignity.
The unjust enrichment cause of action addresses the actual user-beneficiary of the misappropriated image and likeness and consideration of such use may affect the measure of damages.
There are also several related causes of action, each having significant legal differences from the right of publicity. These causes of action include: (1) trademark infringement; (2) false advertising; (3) invasion of privacy – false light; and (4) defamation.
The available remedies for infringement of an individual’s right of publicity include injunctive relief and monetary damages. Monetary damages in right of publicity cases may be limited to those damages resulting from the harm to the commercial value of one’s identity. These damages may be measured by the fair market value of the unauthorized use and/or a plaintiff’s loss of future potential earnings. Some states may allow for recovery of the infringer’s profits, as well as exemplary or punitive damages.
Two leading treatises on the right of publicity are J. Thomas McCarthy, The Rights of Publicity and Privacy (2nd ed. 2006), and Thomas Phillip Boggess, Causes of Action for an Infringement of the Right of Publicity, 31 Causes of Action 2d 121 (2006). An interesting student-written law review article offering a new method for calculating damages in right of publicity cases is: Matthew Savare, The Price of Celebrity: Valuing the Right of Publicity in Calculating Compensatory Damages, 11 UCLA Ent. L. Rev. 129 (Winter 2004).