Patent Article by William S. Ramsey, P.C.

USING NAMES AND FACES ON THE INTERNET

William S. Ramsey
Attorney at Law
410-740-2225 or email: billramsey1@comcast.net
Not Legal Advice

"I make baseball bats. I'd like to feature names and pictures of some famous hitters such as Babe Ruth, Ted Williams, Mark McGwire, and Sammy Sosa on my website. Can I do it?" (not a real client). This is a reasonable, simple request, important to a lot of people, but, sadly, there is no simple, reasonable answer.

WHAT IS THE RIGHT OF PUBLICITY?

The issue raised above is the Right of Publicity (ROP). It protects against unauthorized commercial use of a person's name, image, or voice. A celebrity who enjoys protection under the ROP therefore can exploit his or her identity through assignment or license of the right to use the identity in commercials. The problem for a website owner is that there is no federal law on the ROP; it is established in statutes in about half of the states, and does not exist, or is protected by common law, in the remaining states (Maryland has no such statute).

In some states with ROP statutes, its application requires that the owner already have made commercial use of his or her identity. Most statute states, however, apply the statute equally to celebrities and non-celebrities. In most of the statute states the right exists post-mortem, after the death of the owner of the identity. The time this right extends after death varies among the states, from 20 years in Virginia, to eternally, if continuously used in commerce in Tennessee (the home of Elvis Presley). It is not surprising to learn that the look-back period, the time the statute protects the image of persons who died before the statute was passed, also varies, and may be as long as 100 years in Indiana. Since it is unlikely that a person who died 100 years before the ROP passed in his state would have provided for it's distribution in his will, the job of obtaining permissions to use an identify from the current owners would appear daunting.

Since the ROP varies so much between the states, the choice of law is an important issue. In general, the law of the home of the person asserting the right is the state law which applies. In the case of a dead person, the state in which he or she lived when death occurred applies. This diversity in the law among the states creates real problems for a company constructing a national or internet marketing campaign.
The internet has created opportunities for a celebrity to earn money by exploiting his or her image. At the same time, it has created opportunities for others to exploit that person's image. Thus far, internet cases which have preceded through the appeal courts for the most part have involved the use of nude images, probably because pornography was the primary commercially viable product on the internet for many years. These cases appear to involve a straightforward application of the California ROP statute. In one case, nude models had assigned their rights of publicity to the publisher of a photographic magazine. The defendant was found in violation of that right by copying the photos from the magazine and publishing them on his website.

HOW CAN A WEBSITE AVOID RIGHT OF PUBLICITY PROBLEMS?

Your best bet is always to obtain the right to use an image or name through a written assignment or license. The license should deal with the exact identity component involved, the territory, the duration of the license, the product or service advertised, exclusivity, post-mortem, and choice of state law. Of course, if photographs created by others are to be used, copyright permission also would be required.

Websites posting pictures and names of non-celebrities often use a less cumbersome procedure which involves click-through permissions. The website owner should be able and willing to verify that permissions were not provided fraudulently. In a case involving Hustler magazine, stolen pictures were submitted to the magazine for publication. The procedure to verify the permission, submission of a phone number, was easily circumvented by the thief who answered the phone and fraudulently confirmed the submission.