Right of publicity/Publicity rights relates to intellectual property. Publicity rights are also known as Personality rights. The concept of right of publicity was developed to prevent the misuse of a personality’s likeness or name for profit. Right of publicity is the right to regulate the commercialization of one’s persona. In short, it can be said as a right to prevent others making money of you without your consent.
Although, popular among celebrities or public personalities, in some states publicity rights are applicable to every individual regardless of whether or not he or she is a celebrity. It allows an individual to regulate and profit from one’s own identity. It gives the individual or his/her heirs (after death) exclusive rights to the use and profits of the individual’s identity.
Under publicity rights, if an individual’s name, portrait, picture, or identity is used for commercial purpose without the individual’s consent he or she can bring an action for damages against the wrongdoer. In certain states the individual’s legal heirs will be able to bring an action against the wrongdoer, if the misuse of identity happened after the individual’s death.
Publicity rights in U.S. vary from state to state. Some states have enacted statutes, and some other states have case law dealing with publicity rights. Some states including California provide protection to a person’s publicity rights beyond a person’s death. Indiana also has an extensive statute on Publicity Rights. The Indiana statute extends protection on Publicity Rights for up to 100 years after a person’s death. Apart from regular protection given to name, and likeness, the Indiana statute gives protection to a person’s mannerisms, signature, gestures, photographs, and distinctive appearances. Publicity rights are considered a branch of property right in states like California and Indiana, which permits publicity rights beyond a person’s death. Hence, the rights are carried over to the person’s descendants.
Some states which have specific statutes governing Publicity rights are: California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. California, Nevada, Oklahoma, and Texas require legal heirs of the deceased individual to register for their ownership of publicity rights. Once the registration is done, it is considered as a notice to the general public about the ownership. Anybody who wants to use the deceased individual’s identity for profit will have to take prior consent from the owner of rights (legal heir). An extract from the Washington state law on publicity rights is as follows:
“Every individual or personality, as the case may be, has a property right in the use of his or her name, voice, signature, photograph, or likeness, and such right shall be freely transferable, assignable, and licensable, in whole or in part … The property right does not expire upon the death of the individual or personality, as the case may be. The right exists whether or not it was commercially exploited by the individual or the personality during the individual’s or the personality’s lifetime.”