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Getting The Deal Through

Global Overview

Jonathan D Reichman

Kenyon & Kenyon LLP

Thursday 15 October 2015

The right of publicity is the right of an individual to control the use of his or her name, likeness or other personal attribute (voice, signature, etc) for commercial purposes, such as use on merchandise or in advertisements. The right is often considered a form of, or related to, the right of privacy, which is the right of an individual to control the use of his or her personal attributes for any public purpose. In recent years, however, the right of publicity has been recognised as a unique form of property governed by its own rules and principles.

The expansive growth of publicity rights, from being almost non-existent 50 years ago to widely accepted today, reflects increased concern that, without protection, an individual’s identity can be used and abused by third parties in connection with advertising, promotions, products and other commercial activities. As the following chapters make clear, however, critical issues in the field, such as what forms of identity should be protected, how long protection should last and how protection should be applied in various commercial contexts are addressed differently in different jurisdictions. These questions are thorny because of the inherent tension between publicity rights and the ability of businesses and other entities to freely engage in advertising, entertainment and other forms of commercial expression. In many jurisdictions, including those surveyed in this book, the right to freedom of speech and expression – even for purely commercial purposes – is highly valued. Therefore, countries have understandably been reluctant to limit free speech through the creation of a new personal right.

The complexity of these issues is compounded by developments in both technology and popular culture. The global information revolution – as reflected in phenomena such as the internet, social networking, reality television and viral advertising – creates a world that crowns more individuals than ever before as celebrities (even if only for Andy Warhol’s proverbial 15 minutes of fame), yet at the same time gives companies more media avenues than ever before to engage in unauthorised exploitation. However, despite these global challenges, and the potential for an individual in country A to have his or her identity misappropriated halfway around the world in country B, no unifying body of international law exists on the right of publicity. Unlike other intellectual property fields such as copyright, trademark and patent law, there are no international treaties or conventions. As a result, a wide spectrum of protection is offered by the various jurisdictions around the world. In the United States, a wide spectrum of differences even exists between individual states.

These significant differences arise between countries because there are fundamentally different philosophies behind protecting the right of publicity. Some countries, such as the US, view the right as a commercial property interest to be exploited and traded at will; others, such as Austria, view it as a fundamental personal right that cannot be severed from the individual. Still others, such as Spain and Portugal, adopt both approaches. (These different philosophies are also reflected, to a significant extent, in historically different approaches to copyright law.) In practical terms, those jurisdictions viewing publicity rights as property often give greater freedoms to individuals who want to monetise their identities, whereas those viewing the right as personal usually reduce these freedoms while nevertheless affording individuals the ability to protect themselves and reassert their authority if a user or licensee acts contrary to their vision.

Of the 14 jurisdictions surveyed, seven recognise the right of publicity as a distinct per se right, independent of other rights, and seven jurisdictions offer analogous protections but regard the right as cobbled together from other laws. However, even beyond these two categories, distinctions predominate. This book attempts to help the reader understand those distinctions while highlighting areas of similarity where they exist.

Probably no aspect of publicity rights is more varied than the scope of protection offered. All jurisdictions that recognise the right protect an individual’s name and likeness, but that is where the similarity ends. For example, China protects an individual’s signature; France protects an individual’s title of nobility, family motto and heraldic signs; and Brazil expressly protects an individual’s family name.

Some jurisdictions have protections that are somewhat vague and open-ended. For example, in Brazil, any ‘physical, psychological, or moral characteristic’ is protected. Other countries, including Argentina, Austria, Italy and Greece, as well as certain US states, grant protection for any element of a persona that serves to identify a person in the minds of the public. In 2014, the European Court of Justice recognised a new ‘right to be forgotten’ on the internet, which, under certain conditions, allows individuals to remove search engine links which contain their personal information. The contours of this new right are still being developed. Such undefined parameters of protection can often lead to controversies in court.

Another major area of distinction is whether the right can be licensed and sold. Some jurisdictions, such as Denmark, Greece and the US, allow the right to be freely licensed and transferred in accordance with the laws of private property. Some, such as France, Italy and China allow the right to be licensed but not transferred. Other jurisdictions, such as Austria, allow neither (except through trademark rights). Still other jurisdictions (such as Germany and Russia) do not allow the transfer or licence of the right of publicity, but do permit individuals to give permission for the use of the right. Thus, in these latter jurisdictions, an individual can never truly part with the rights to his or her identity. Spain, which adopts both the property and personal approaches, allows an individual to sell the commercial rights to his or her identity but not the constitutional rights.

A further area of distinction among jurisdictions is the length of protection for the right. While virtually all surveyed countries grant protection throughout the life of the individual, several jurisdictions, including Argentina, Brazil, France, Germany, Spain and Russia, as well as some US states, allow the right to continue after death and to be controlled by the individual’s heirs (subject to some qualifications, such as in Russia, where certain elements of the right continue after death only if the person is survived by an heir). This is known as post-mortem protection. In Germany, some aspects of the right (ie, those considered to be linked to an individual’s right of privacy) end at death, while the more commercial aspects subsist for 10 years after death. In Argentina, the right subsists for 20 years after death. In the US, the availability of post-mortem protection varies among the states and is one of the most contested aspects of American right of publicity law. New York, a commercially prominent state that is home to many celebrities, does not recognise any post-mortem protection, while California (the other ‘celebrity capital’ of America) grants protection for 70 years after death. In some countries, such as Greece, the term of protection is unknown because the laws have never been tested.

Finally, several jurisdictions that treat the right of publicity as personal (rather than as property) grant a decedent’s close relatives an additional right, which is akin to post-mortem protection, namely protection from statements or publications that would dishonour the decedent’s family. These relatives may only enforce the right if they can prove that their own interests were also directly affected. The right subsists for the lifetime of any qualifying relative.

In litigation for the infringement of publicity rights, the remedies available to a plaintiff vary in accordance with local civil practice. Virtually every jurisdiction awards the plaintiff injunctive relief and monetary damages if infringement has been proven. However, certain jurisdictions, such as Austria, China, France, Italy and Greece, also provide for publication of the judgment, and other jurisdictions, such as the US, allow for punitive damages.

In the context of right of publicity violations, secondary liability of internet search engines may attach in certain jurisdictions. In Germany and Argentina, for example, an internet search engine is secondarily liable for a right of publicity violation when it is aware of such violation.

In other areas of right of publicity law, the similarities among jurisdictions outweigh the differences. For example, virtually all the surveyed jurisdictions exempt use of an individual’s identity for the purposes of news reporting and public affairs. Such exemptions reflect the common belief that, while an individual’s persona has value, protection must sometimes yield to the freedom of expression. For example, in Germany the Constitution protects the freedom of the arts and the press, and publicity rights must defer to them. Austria applies an express balancing test, asking whether the public’s interest in use of an individual’s identity (for example, in a magazine picture) outweighs the individual’s interest in controlling it. In Spain, the image of an individual can be used if such individual is a public official at a public event or if the image is accessorial to a news story. In France, humour, and facts in the public domain and of newsworthy expression, are exempt from right of publicity protection, although the public domain or newsworthy exemption is limited if the material is indecent and violates the individual’s dignity. In the US, the Federal Constitution protects freedom of expression. However, some American courts have held that commercial speech (such as advertising) is not protected as strongly as non-commercial speech (such as newspaper articles), and therefore the use of an individual’s identity in an advertisement, for example, would not be entitled to this constitutional protection. In Spain, where minors are concerned, their right of publicity will prevail over others’ right to freedom of speech or information.

Unfortunately, the dividing line between exempted versus non-exempted speech is often blurry, as reflected in each jurisdiction’s efforts to draw the line in its own way. In Spain, the use of an individual’s persona in an image is allowed if the use meets ‘social norms at the time’ – another ambiguous phrase. And in the US, courts have struggled when attempting to determine whether expression is commercial or non-commercial.

Another similarity among the surveyed jurisdictions is that most do not require an individual to register his or her publicity right as a prerequisite to enforcing it. (In Russia, however, an individual’s name must be registered at birth to receive protection, and a few jurisdictions do require registration for post-mortem rights.) This policy reflects the fact that, as with copyright law (but in contrast to, for example, patent law), most jurisdictions reject formalities as a condition to right of publicity protection. Thus, it is a right that automatically belongs to all individuals as a matter of law. Furthermore, virtually all jurisdictions grant the right to any individual, without any requirement that the individual actively commercialise his or her identity. There are some exceptions, and a few jurisdictions treat the right of publicity differently for celebrities. A few jurisdictions expand protection beyond individuals. For example, in Austria and Russia, a corporation or legal entity can rely on the right of publicity to take action against certain infringements of its name, while in several US states, musical groups have been held by courts to possess a right of publicity. Some jurisdictions deny the right to non-citizens. In the US, courts are divided over whether foreign individuals possess the rights, particularly if the individuals reside in countries that do not recognise the right.

Finally, all of the surveyed jurisdictions are similar in that they allow other forms of intellectual property protection (ie, beyond the right of publicity itself) to be invoked against identical or similar acts of infringement. For example, an individual can secure copyright protection for a photograph or drawing of his or her likeness. Furthermore, famous individuals can often register their names or images as trademarks. Such trademark protection has certain unique advantages over right of publicity law. For example, trademark protection can potentially last indefinitely, in contrast to right of publicity protection, which lasts for the individual’s lifetime or, at most, a fixed number of years thereafter.

Relative to other forms of intellectual property protection, the right of publicity is still in its infancy. While the laws of the surveyed jurisdictions provide different levels and types of protection, all reflect the growing view that an individual’s identity, and the unique elements that comprise it, possess intrinsic commercial value that the individual should be allowed to control. We hope that this international survey will assist legal practitioners and legislatures as they grapple with this fascinating and burgeoning field.

The author wishes to acknowledge the contribution of Kenyon & Kenyon LLP associate Susanna P Lichter for her assistance in the preparation of this overview.

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