Misappropriation and Right of Publicity

What is “misappropriation of name and likeness” and how does it affect me?

Misappropriation of name and likeness is when someone else uses your name or likeness for his benefit, such as for an advertisement or commercial. Restatement (Second) of Torts, § 652 C (1977). To prove a case of misappropriation, you must show that someone else has used your identity, for some advantage, which most commonly is for commercial use. Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir. 1995). You do not have to prove that the defendant made money off the commercial use of your name of likeness. Henley v. Dillard Dept. Stores, 46 F.Supp.2d. 587, 597 (N.D.Tex.,1999).

Misappropriation can be the use of your name, picture, your voice, or something else that is directly associated and recognized as part of your image and likeness. An example of misappropriation is when Bette Midler won a case against Ford Motor Company after they used a sound-alike performer for an advertisement. Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988). Her name and likeness was connected with the product based on the distinct sound of her voice. Id. In another case a portable toilet company used the phrase “Here’s Johnny” in their advertisements, and Johnny Carson successfully sued for misappropriation of name and likeness due to the unequivocal connection between Carson and the phrase “Here’s Johnny.” Carson v. Here’s Johnny Portable Toilets, Inc. 698 F. 2d 831, 835 (6th Cir. 1983).

What can I recover in a misappropriation lawsuit?

In misappropriation cases individuals can recover both general damages and special damages. National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533, 540 (W.D.Tex.1980). General damages are “non-monetary” damages, such as mental anguish. Special damages are “economic” damages, such as past and future wages.

What is the Right of Publicity?

The Right of Publicity is a property right in Texas, similar to misappropriation of name or likeness, which protects the name and likeness of a deceased person. Tex. [Property] Code Ann. § 26 (Vernon 1987). The Right of Publicity is a state based right; therefore, it will differ from state to state. Texas recognizes the Right of Publicity in the Property Code as “a property right in the use of the individual’s name, voice, signature, photograph, or likeness after the death of the individual.” Tex. [Property] Code Ann. § 26 (Vernon 1987).

The Right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Elvis Presely Enterps., Inc. v. Capece, 950 F. Supp. 783, 801 (S.D.Tex.1996). A celebrity has the right to control and profit from the use of their name, likeness, voice, or picture. A person's Right of Publicity is most commonly violated when someone uses the person’s name, image, performing style, nickname or voice to promote a business or product. Carson v. Here’s Johnny Portable Toilets, Inc. 698 F. 2d 831 (6th Cir. 1983).

For example, Dillard Department Stores ran an advertisement for the “Henley shirt,” featuring a picture of a man wearing a Henley-style shirt with large words stating, “this is Don” and “this is Don’s Henley.” Henley v. Dillard Dept. Stores, 46 F.Supp.2d. 587 (N.D.Tex.,1999). A Texas federal court found that Don Henley’s Right of Publicity had been violated because Dillards had used the name and likeness of Don Henley, and Don Henley could be identified from the use of his name in the advertisement. Id.

What does the Right of Publicity have to do with me right now?

In Texas you may transfer this property right before or after death. Tex. [Property] Code Ann. § 26.004 (Vernon 1987).You may leave your Right of Publicity to your family or another individual in your will. Id. If you die without assigning this property right to someone, either before death or in your will, then it will pass on to your heirs. Tex. [Property] Code Ann. § 26.005 (Vernon 1987).

Transferring your Right of Publicity to an individual can help insure that your image is carried forth in the manner you wish.

You can register this property right with the Secretary of State for a fee of $25. Tex. [Property] Code Ann. § 26.006 (Vernon 1987). Registration of the claim is not necessary, but it will give that individual a superior claim over anyone else that attempts to claim the Right of Publicity.

See the Texas 3701 Form here: http://www.sos.state.tx.us/statdoc/faqs3700.shtml.

Are there any permitted uses of the deceased individual’s name, voice, likeness, signature, or photograph without consent?

Yes, in Texas there are authorized uses for a deceased individual’s name, voice, signature, photograph or likeness. Tex. [Property] Code Ann. § 26.012 (Vernon 1987). The permitted uses are for a play, book, film, radio or television program, magazine or newspaper article; material that is primarily of political or newsworthy value; and single and original works of fine art. Id.

A media enterprise may use one’s name or likeness if it is for an advertisement or commercial that is connected with the coverage of news, public affairs, sporting events, or political campaigns, as long as there is no connections with commercial sponsorship or paid advertising. Tex. [Property] Code Ann. § 26.012 (Vernon 1987).

When is it illegal for someone to use the name, voice, likeness, signature, or photograph of the deceased without consent?

In Texas a person may not use a deceased individual’s name, voice, signature, or likeness in any manner in connection with products, merchandise, or goods, or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise goods, or services, without first obtaining consent from whoever owns the individual’s publicity rights. Tex. [Property] Code Ann. § 26.011 (Vernon 1987).

What are the legal remedies for Right of Publicity claims?

A person who illegally uses the deceased individual’s name, voice, signature, or likeness is liable to the person who owns the property right for the amount of damages that result of the unauthorized use or $2,500, whichever is greater; the amount of any profits from the unauthorized use that are attributable to that use; punitive damages; and reasonable attorney’s fees and court costs. Tex. [Property] Code Ann. § 26.013 (Vernon 1987).

Does my Right of Publicity last forever?

No, in Texas the Right of Publicity will expire on the 50th anniversary of the date of the individual’s death. Tex. [Property] Code Ann. § 26.012 (Vernon 1987).

Sources:

• Benavidez v. Anheuser Busch, Inc., 873 F.2d 102, 104 (5th Cir. 1989).
• Brown v. Ames, 201 F.3d 654 (5th Cir. 2000).
• Carson v. Here’s Johnny Portable Toilets, Inc. 698 F. 2d 831, 835 (6th Cir. 1983).
• David Showalter, Music, Lyrics, and Copyright: Intellectual Property Rights in Music, 74 Tex. B.J. 210, March 2011.
• Elvis Presely Enterps., Inc. v. Capece, 950 F. Supp. 783, 801 (S.D.Tex.1996).
• Henley v. Dillard Dept. Stores, 46 F.Supp.2d. 587 (N.D.Tex.,1999).
• http://rightofpublicity.com/brief-history-of-rop
• J. Thomas McCarthy, Melville B. Nimmer and the Right of Publicity: A Tribute, 34 U.C.L.A.L.Rev. 1703, 1704(1987).
• National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533, 540 (W.D.Tex.1980).
• Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
• Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir. 1995).
• Restatement (Second) of Torts, § 652 C (1977).
• Tex. [Property] Code Ann. § 26 (Vernon 1987).

Written by Texas Tech law student Callie Baker, Sept. 2011.