Great Pic! But Can You Use It?

Originally published by Cleve Clinton.

Running for office, Starr Struuck sent out a campaign newsletter extolling her qualifications and a list of reasons why she should be elected rather than her incumbent opponent. Prominently displayed in her newsletter and website was a personalized and autographed Comic-Con convention photograph of Starr Struuck perched beside wildly popular and well-known Captain Kurff of Star Warp’d. When advised of her campaign literature, Captain Kurff tweeted Struuck demanding that she destroy all copies of the campaign newsletter and remove his likeness from any of her campaign materials as he was not endorsing her. Protesting that she was merely publicly confessing her affection for the Captain and geeky shows generally, Starr resisted. Is Captain Kurff right?

 

Almost certainly so.

Misappropriation of Likeness

In Texas and in more than half the other states, any individual has the right to control the use of their name and likenesses for commercial and other valuable purposes. Established through the common law as a misappropriation of the name or likeness of another, the misappropriation tort gives Kurff a claim if:

(1) Starr appropriated Captain Kurff’s name or likeness for something other than a newsworthy purpose;

(2) that Captain Kurff can be identified from the publication; and

(3) that there was some advantage or benefit to Starr.

The scope of the protection is broader than just names and images for commercial purposes, but also the ability to prevent the use of sound-alike singers, catchphrases, nicknames, and even objects associated with them. When Bette Midler’s management team rejected a Ford request to use her recording of “Do You Want to Dance” for a commercial and Ford’s agency hired a backup singer instructed to sound like Midler as much as possible, Midler’s claim to protect her widely known distinctive voice netted her a tidy $400,000. Similarly, celebrity Johnny Carcy successfully claimed his identity was misappropriated by a company’s use of his famous Tonight Show introductory phrase “Here’s Johnny” on portable toilets. In each case, the celebrity’s identity was commercially exploited causing an invasion even though their specific “name or likeness” was not used.

In Texas, misappropriation of likeness has been statutorily extended to a deceased individual’s name, voice, signature, photograph or likeness as having a right of publicity under the Texas Property Code. Even though the right is protected only for 25 years, Lubbock, Texas city officials cancelled a concert scheduled for the 50th anniversary of Buddy Holly’s death and agreed to pay his widow $20,000 over twenty years to continue to use his name and image in connection with various city promotions.

Tilting the Scales in Your Favor  

Especially for your business or for any use for your benefit, if you are using social media (Twitter, Instagram, Snap Chat, Facebook, Periscope and the like) or you are updating your website – or perhaps even sending out a blog! – you should be mindful of your content, how it’s being used and who might object to being seen, heard, or associated with your communication, and then to take steps to prevent your inadvertent unauthorized use of another’s right of publicity.

1. Review your material for possible violations of rights of publicity. Everyone has a right of publicity, not just celebrities.
2. If your content contains someone’s name, likeness, or even the sound of their voice, you should evaluate the risks involved, perhaps with the assistance of legal counsel, before you publish that material.
3. If in doubt, consider contacting the person, or their agent, and get written permission before using any aspects of their identity, or call your attorney to determine what defenses you may have that will allow you to use the material and reduce the risk of a lawsuit. If you don’t do either, you may have to pay sooner or later to obtain those rights.
4. If the person is deceased, you should determine if any rights still exist, and who holds those rights.
5. If you elect not to investigate or to seek legal advice, you might consider obtaining insurance that will cover right of publicity claims against your business.

Stay tuned, next month we will discuss your indiscriminate use of Google Images.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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