The right of publicity protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity – such as nickname, pseudonym, voice, signature, likeness, photograph, etc. – for commercial benefit. For example, if a coffee company places your name and/or likeness on the label for one of its coffee blends without your prior consent, they would be violating your right of publicity because they are using your name and/or likeness to market their goods. The right of publicity is a creature of state law. There is no federal right of publicity statute. Some states, like California, recognize the right of publicity by statute. In California that statute is California Civil Code Section 3344. Other states recognize it only by common law. Some states recognize both.
Right of Publicity Frequently Asked Questions
As of this writing, 36 states recognize the right of publicity (that includes Puerto Rico). Of those, 25 states have a right of publicity statute; the remainder recognize the right of publicity under the common law of those states that has developed through case law. Some states – like California, Nebraska, Pennsylvania, and Texas – have both a right of publicity statute and recognize publicity rights in excess of the statutory rights under those states’ common law.
Name, image, likeness, commonly referred to by the acronym “NIL,” refers to the primary elements of the right of publicity. NIL is shorthand for all the elements of one’s publicity rights, and not only to the name, image, and likeness. Typically, a reference to NIL rights or licenses means the right of publicity and the licensing of that right.
Yes, finally! After years of prohibiting student-athletes from generating revenues from their publicity rights, the NCAA now allows it. On June 21, 2021, the United States Supreme Court issued its decision in National Collegiate Athletic Association v. Alston, et al. finally granting student athletes this right. To enter into an NIL deal, either as a student-athlete or a brand seeking to leverage the publicity rights of a student-athlete, it is necessary to do so carefully and properly, and legal counsel should be consulted.
Generally, the right of publicity is included with copyright, trademark, patent, and trade secrets as a branch of intellectual property law. Privacy is also sometimes considered a form of intellectual property law.
No. It is an individual, personal right. If a company’s name is used without consent, depending on how it is used, that company may have a trademark claim.
To establish a right of publicity claim you must show:
- that the defendant knowingly used an element of your publicity rights (your name, image, likeness, voice, signature, photo, etc.) on merchandise or to advertise or sell the goods or services of the defendant;
- that the use did not occur in connection with a news, public, affairs, or sports broadcast or account, or with a political campaign;
- that the use of your NIL was without your consent;
- that the defendant’s use of your NIL was directly connected to the defendant’s commercial purpose; and
- that you were harmed as a result of the non-consensual use of your NIL.
Some states do recognize a posthumous (i.e., after death) right of publicity. For example, the state of California recognizes a post-mortem right of publicity pursuant to California Civil Code Section 3344.1. To assert a posthumous claim of right of publicity in California, it is first necessary to register that claim with the California Secretary of State, which form is found here https://bpd.cdn.sos.ca.gov/sf/forms/np-sf-407.pdf. The term of this right after death varies significantly by state. In California, the posthumous right lasts 70 years after death. Other examples include: Florida recognizes the posthumous right for 40 years post death, Indiana and Oklahoma recognize this right for 100 years post death, and Nevada is 50 years after death. Many of the states that recognize the posthumous right of publicity require that, to have this right after death, it is necessary that the person’s NIL had actual commercial value during their lifetime. For instance, the California posthumous statute requires that the claimant be a “deceased personality,” in other words, the individual on whose behalf a posthumous claim is being asserted must have had value to their right of publicity during life.
It depends! Not if your state recognizes a posthumous right of publicity; see FAQ above.
Generally, no. California is instructive in this regard. In California, if your NIL is used commercially by a third party without your consent during your lifetime you do not need to be a celebrity or otherwise famous to assert a claim of violation of your right of publicity (this is the scenario noted in response to the first FAQ above). However, if the NIL of a deceased individual is used commercially without consent, the holder of that post-mortem right can only assert a claim under California’s post-mortem right of publicity statute if (1) the successor-in-interest claim was registered with the California Secretary of State prior to use of the NIL, and (2) the NIL of the individual whose right of publicity was used had commercial value prior to death.