Sunday, February 21, 2016

Bo's bLAWg- The Right of Publicity

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also Co-President of California Lawyers for the Arts. www.calawyersforthearts.org  Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

 

After I’d turned in my bLAWg to Annie in December, I received another client holiday gift that raised legal issues that she had not considered that is topical.  The set of cards I received contains illustrations of a number of celebrities.  Clearly, she had not obtained their permission to feature their likenesses on gift cards.  As long as the cards were being circulated to friends and families as examples of the Artist’s fine skills, there is no legal risk.  However, if the Artist were to sell a single set of these cards, she would be subject to some very expensive legal claims.

The legal interest that underlies this claim is the Right of Publicity.  While it is celebrity images that are most commonly used by illustrators or photographers on cards or on products from digital picture frames to place mats and t-shirts, everyone has an individual Right of Publicity.  In short, it is a personal right to either allow their name and image to be used for commercial purposes – or not.  With respect to celebrities, this right is directly associated with endorsements.  One cannot turn on the television or flip through a magazine without seeing the image of some celebrity touting the benefits of some product.  They get paid big money for these kinds of endorsements.  Whether their image appears on a towel or product packaging, the celebrity has a reasonable right to object unless they have expressly granted this personal right – and so would you or I; although, our damage claim would no doubt be significantly less than that of a celebrity!

(However, writing that reminded me of the Taster’s Choice claim.  In 1986, a one-time model, Russell Christoff, posed for a Nestle photo shoot pursuant to an agreement that paid him for a couple hundred dollars for shoot but promised him $2,000 if his image was actually used to market Nestle’s Canadian division products.  By 2002, Christoff had become a school teacher.  That year, while shopping in a Rite-Aid store in the US, Christoff saw his image on the label of jars of Taster’s Choice Coffee jars.  Christoff had never been paid the $2,000.  Instead of suing for his contract damages, he made a Right of Publicity claim under California law.  With the help of some good lawyering, a jury returned a verdict in favor of Christoff for $15.3 million dollars(!) based on 5% of Nestle’s profits for the six years that Nestle had been using Christoff’s image on the Taster’s Choice label.)

While the Right of Publicity is a matter governed by State law --  which varies from State to State -- because cards and products are typically sold all across the country,  a person whose right of Publicity has been violated can ‘forum shop’ and potentially bring an action against anyone who has profited by the use of their image without their permission.  This means the shop that sells the offending card and the distributor who provided it to the retailer are also liable, albeit they would have a right of indemnification against the Artist who provided them the cards with an express or implied warranty that they had the right to use the image on the card or product.

Christoff used the California Right of Publicity because it is one of the strongest.  This is due to the fact that a lot of celebrities live in California and the State wants to protect their interests.  California’s Right of Publicity is found in Civil Code Section 3344:               http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3344-3346

Under this statute, a person (or company) who knowingly uses the image of a person without their permission is liable to the injured party for his actual damages (like provable endorsement fees otherwise due a celebrity), “and any profits from the unauthorized use that are attributable to the use…” or a minimum of $750.  In addition, the defendant may be subject to a punitive damages, (often based on their total value or assets(!).  And one of the best parts of the statute is that the prevailing party in such an action is entitled to recover their attorney's fees and costs – like in a post registration Copyright infringement action as noted in my June 2015 bLAWg – which means I take these cases on a Contingent Fee basis. Given the risks of a losing case, the defendant will almost always settle rather than risk fees and costs on top of the claimant Plaintiff’s damages.

And don’t think that just because a celebrity is dead that you are safe to use their image.  To the contrary, many States protect the Right of Publicity of the dead!  California Civil Code Section 3344.1 (same link as 3344 above), provides the same rights and remedies to deceased “personalities” as 3344 provides to the living.  All the Estate or heirs of the personality has to do is register the name of the deceased at the California Secretary of State Office.  If you want to find out if a given personality is registered you can find out at this linked website:
http://www.sos.ca.gov/business/sf/sf_siisearch.htm

However, just because you do not find listed at the California Secretary of State the name of the dead celebrity whose image you want to use on a card, does not mean that you can.  Since the right is State to State, there are other States that protect this right for a term of years without any Registry, and others who may well have case law instead of statutes that provide similar rights.  So, what’s my advice?  Don’t use any illustrations or photos of people on any product for sale unless you have obtained a license that warranty that the underlying rights to the image have been obtained for the intended purpose.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

5 comments:

  1. Thank you for a great advise.
    What are the legal issues if you are a photographer, taking photos of people on the street and then selling them as art in numbered quantity, possibly/ hopefully :) getting a licencing contract for multiple prints? Some of the photos might have a person filling the frame. I can imagine that a person might be surprised to see a photograph of themselves for sale, but do they have a legal claim, if the photo is taken in a public place.
    Thank you in advance for your answer.
    Rosa

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    1. Hi Rosa! Thanks for stopping by the blog. I forwarded your question to Bo.

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  2. Replies
    1. Hey Rosa - Welcome! Bo is great :-D

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    2. If I had someone come to me asking about their rights when they discovered they were featured in your limited edition prints, I’d have two thought. First, is that under CA law they have a Right of Publicity claim. After all, you are using their image commercially. Why should their permission not be required? Why should they not share in the rewards of your efforts featuring them?
      However, I am also aware of case law that supports the proposition that if the photography is artistic enough, it is protected as Free Speech – one of the benefits afforded artists. The photographer, Philip-Lorca DiCorcia prevailed against Right of Publicity and Privacy claims in a New York case. See: https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia
      There is no way to know how such a claim would turn out against this defense in a given case or state. Indeed, the decision could go one way one time and the other way the next. Indeed, my advice to my hypothetical client would be to seek royalties, or file an action in CA Small Claims Court where the worst result would be they lose, but if they win, they would be entitled to $750 minimally, and perhaps, much more.

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