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Steve Moore, B.A., J.D. Author Steve has been in the music business for over 30 years! He's worked as a professional musician, producer, and has been involved in almost every aspect of the music business. He's also the author of "The Truth about the Music Business"

Publicity Rights and Privacy Rights

What are Publicity Rights?  And what is your Right to Privacy?

With the changes in the internet and SOCIAL MEDIA I’ll have to write even MORE about your RIGHT TO PRIVACY – but for now – here’s an excerpt to read:

Publicity and Privacy Rights

Right of Privacy: the right of a person to be free from intrusion into or publicity concerning matters of a personal nature (called also right to privacy) Note: Although not explicitly mentioned in the U.S. Constitution, a penumbral right of privacy has been held to be encompassed in the Bill of Rights, providing protection from unwarranted governmental intrusion into areas such as marriage and contraception. A person’s right of privacy may be overcome by a showing that it is outweighed by a compelling state interest. Merriam-Webster’s Dictionary of Law ©1996[i]

Publicity Rights: the right to prevent unauthorized use of one’s name or likeness by a third person for commercial benefit. Merriam-Webster’s Dictionary of Law ©1996[ii]

Privacy and publicity laws are designed to protect completely separate and distinct interests from copyright or trademark interests, but are often very much inter-related by the mediums in which may be used to exploit these rights. As discussed earlier, copyright protects the copyright holder’s property rights in the work or expression of an idea, while privacy and publicity rights protect the interests of the person or persons who may be the subject or subjects of the work or expression of an idea. Privacy and publicity rights come in to play when someone wants to use photographs, audio, video or prints or likenesses of individuals.  Therefore, for someone to actually infringe on someone’s privacy or publicity rights, they generally must use some type of copyrightable art form such as a picture, video, audio and the like.

Let’s take photographs and discuss the rights that are involved, as seeing a person in pictures is a very common situation that arises every day.  When a picture is taken, the photographer is the person that has the right to copyright his pictures, as he is the person that creates the photograph and therefore he should be able to have the right to protect his work.  However, the subject of the photograph (the person or persons in the photograph) has rights too.  If someone want to use a particular photograph for an album cover, website, flier, or perhaps even for a t-shirt that is of some person or subject other than the artist on the album, then a couple of issues will arise.  First of all the photographer must grant a license to use the photograph to the perspective user unless of course the photographer was paid to take the picture and there was a “work-for-hire” relationship.  In a work-for-hire relationship, the photographer is paid to take a photograph and is required to sign an agreement whereby he accepts payment for his creation of his intellectual property right (the photograph) and transfers that ownership in the copyright to the person that pays for the photograph and who now will have the exclusive right to file for the copyright and be granted all the rights that copyright entails.

As to the second issue in regards to use of a photograph, if you use a picture on your website, album cover, t-shirt, or whatever and you have not obtained the permission of the “subject” of the photograph, then you may very well have a publicity or privacy right issue on your hands and you may end up being liable to that person for your improper use for commercial gain.

Privacy rights laws in regards to the subject in a photograph or other medium are of a personal nature and are designed to protect the individual.  Every person has the right to not have his or her personal image or likeness to be put out in the public without his or her consent.  In other words, we all have the right to be left alone and to not be exploited by the media in any way in the public eye.  However, some folks by their own actions have signed up for a public life.  You may ask how the paparazzi is able to hound rock stars, movie stars and politicians and continually take their pictures and sell them to the highest bidder?  People that put themselves out in the public eye for personal gain have waived certain aspects of their rights to privacy, as they have become a “public” figure.  Also anything that is a matter of public record is “fair game”. Therefore if you are arrested or involved in any court proceedings, unless there is a “gag” order by a judge or an agreement that a settlement is kept confidential, then anyone that can get to the courthouse has the right to read the entire file.  Unfortunately in this day and age where “identity theft” is so prevalent, the courts are going to have to make some type of change in the law so that addresses, social security numbers, credit card numbers and other personal information will not be so readily available to would-be criminals or others with less than honorable intentions.  In the end, if you really want to remain a completely private person, then you may be well advised to never leave your house because once you are in a public place, you are in the public.

Publicity rights laws focus on the protection of an individuals name or likeness.  A likeness can be a sculpture, a drawing, a painting, a caricature, a photograph, or any other reproduction of the image of a person.  In some cases it does not necessarily have to be a persons face but any part of their “image” that can be easily be determined as belonging to that certain person.  The right of publicity gives people the right to prevent others from using their name or likeness for commercial gain without prior consent.  The right of publicity is also very important to those in the entertainment and sports fields that use their name and likeness to make a living and therefore, anyone that exploits that right without consent or compensation is taking advantage of that entertainer or sports figure’s publicity rights and preventing that entertainer or sports figure from reaping the benefits of their hard earned success. But these rights are not the exclusive rights of celebrities.  This is why you see people selling their stories for made-for-T.V. movies, tabloids, and the like, as these studios or magazines cannot use these individuals name and likeness without consent and in many cases payment from the highest bidder for the right.

There is no doubt that “star” power can enhance the commercial value of goods or services with which they are associated.  In fact, many commercials now have celebrity and sports figures’ endorsements for a wide variety of products.  Tiger Woods had never even teed up a golf ball as a professional and he was already worth tens of millions of dollars that came in the form of product endorsements for which he had to make appearances, wear certain logos on his clothing and appear in certain commercials. “Celebrity” wields so much power that advertisers now even have celebrity voices delivering the “voice-overs” to hawk certain goods or services due to the “warm and fuzzy” feeling we get when we hear a familiar voice.

Unfortunately for the entertainers and other public figures along with huge paychecks for commercial endorsements, comes an incredible demand for news stories, gossip rags, interviews, biographies and the like.  Only in very unusual circumstances, permission is not necessary to use a celebrity’s name or likeness in a news report, novel, play, film, or biography, as the “life stories” of celebrities are for the most part public domain and as such belong to everyone and therefore, can be related by anyone even if there is a profit to be made.  This is exactly how the tabloids are able to get away with what they do. However there is one huge caveat that lies in the area of tort law. You cannot make any statement that is defamatory.  Disseminating either written (libel) or spoken (slander) statements that are not true can be actionable at law even if you are able to show that your statements were made by reasonably relying on the truth. Therefore, if people make up stories that can be “proven” to be false you may have a cause of action for defamation.  However the burden of proof for the plaintiff in a defamation action is very hard to meet.  You much show that the alleged defaming party had a duty to not make false statements, that they breached this duty and actually made false statements (which isn’t that hard to prove), and then the most important elements that their false statement have actually and proximately caused you damage.  This last tenant can be very hard to prove.  First you must show that “but for” the actions of the alleged defamer then you would not have been harmed and if you can actually meet this test, then you must prove how much you were in fact damaged.  Regardless of the burden of proof, there is always a risk when periodicals or newspapers hold up a person to ridicule or put them in a bad light, especially entertainers with “deep pockets” that can afford high dollar attorneys to represent them.  At the very least, these high dollar attorneys can make the tabloids think long and hard before printing potentially damaging stories.

Another thing to remember about reporters, newspapers, periodicals, and other media is that they will often hide behind the First Amendment.  Although I am a firm believer in and staunch supporter of First Amendment rights, I don’t believe that anyone should be able to report or print just about anything that they want just to sell copies of their rag, especially if what they print or report is damaging to people and is not true.  Reporters, writers, and the like should have some degree of morals and ethics and also should be held strictly accountable when they represent things falsely. But that leaves us with the question as to who should be able to dictate public morality? This is a difficult question to say the least.  Be that as it may, there isn’t much that you can do when they take sound bites from statements and seemingly twist them so that they have more mass appeal and some degree of sensationalism.  After all that’s what sells newspapers and advertising for the news so there really isn’t much you can about it.

It is important to note here that copyright, trademark, and copyright are federally protected rights while publicity and privacy rights are not.  Publicity and privacy rights are the exclusive provinces of state laws.  While many states do have publicity and privacy rights laws that one can look to when seeking redress, some states do not have any privacy or publicity laws on the books. However, these rights can still be protected under general common laws of misappropriation, misrepresentation, and/or false presentation.  In some cases, the Federal Lanham Act that covers trademark law can be used for claims for unauthorized use of a person’s identity to create false endorsements and the like.  Also, it important to note that “fair use” can be a defense to copyright infringement, but the “fair use” doctrine was specifically written for federal copyright law and does not apply to publicity and privacy rights.  Regardless of the issues, should you feel that you have a claim against someone, then you are best advised to find a very good intellectual property lawyer to represent you, as the law is very complex and you will need someone that is very skilled at these type of arguments if they are going to convince an extremely subjective judge or jury to rule on your behalf and grant you the justice that you feel that you deserve.

Finally, your privacy rights, for the most part, end when you die.  However, your publicity rights that are associated with the commercial value of your name and likeness can continue long after your death and can be passed to your heirs so that they control those rights long after your death.  The best example of this is the Elvis Presley Estate that has complete control of Elvis’s name and likeness and they guard it and protect it like it was pure gold, which is exactly what it is.  Again, this is NOT legal advice – but just something I offer for you consideration.

I’ll cover more about DEAD CELEBRITIES in a future post and how they are making a killing! No pun intended –

I’ll also discuss your right to PRIVACY and how this whole Social Networking has changed everything as with FACEBOOK once you post something – you don’t own it and it’s LIKE a DIGITAL TATOO – that’s why you’re seeing so many of these new services that are cropping up that will help you to ERASE negative things about you, etc – but I do recommend this – READ THE TERMS and conditions of any social networking site BEFORE you starting posting TOO MUCH PRIVATE INFORMATION!

Steve Moore, BA, JD. Author

The Truth About the Music Business

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