What is a ROP, difference between ROP and copyright or trademark; term; value
- In this course, I'm gonna cover right of publicity law. The right of publicity is considered a type of intellectual property. Intellectual property includes five main categories. We sometimes call intellectual property, "IP". IP includes patents, trademarks, copyrights, trade secrets, and rights of publicity. Patents protect inventions, trademark law protects brands, copyright protects creative works like books and art, trade secret law protects confidential information, and right of publicity law protects the right an individual has to exploit their name, image, voice, and likeness.
Essentially, right of publicity is the right you have to prevent people from using your face or your name without your permission. Most right of publicity cases involve the actual use of a photo of a person or the use of somebody's name without permission. But in one case, Vanna White sued over the use of a lookalike robot. Basically, right of publicity is about your right to use and exploit your name, likeness, voice, and image and to prevent others from doing so without your permission. The right of publicity is only addressed at the state level.
There is no federal law like copyright, trademark, or patent law. In fact, not every state has a right of publicity statute. There are essentially two types of rights of publicity, the right for living persons and the right for deceased persons. Most states have statutes to protect rights of publicity during lifetime, some still do not have any, and others have rights of publicity that extend postmortem. That means the protection goes on for some period of time after the person dies. Elvis Presley has been dead for many years, but his rights of publicity continue to subsist and are owned by a company that exploits those rights and enforces against infringement of those rights.
Fourteen states have laws to protect postmortem right of publicity and those are transferable through will or intestacy. The term after death can be as little as 20 years in Virginia, it's 50 years in Illinois, or as long as 100 in Indiana. California, it's 70 years, Tennessee allows rights of publicity to continue forever as long as the rights are exploited. New York and Wisconsin explicitly restrict rights of publicity to living persons. Rights of publicity are typically focused on celebrities, because how much you get in damages depends on how much you could make selling or licensing your image.
However, some people who are newsworthy like war vets or local heroes will have rights as well. In some states like California, the right of publicity protects everyone. If your image is used without your permission in California, you can sue, just like a celebrity can sue. There's only one big difference. Under the statute, your damages will likely be about $700, while a celebrity's damages could be tens of thousands of dollars or even millions. Why is that? Well, celebrities can prove what their right of publicity is worth, because they're in the business of licensing their image, their name, or their voice.
So, the celebrity can prove what they would have made by licensing the right of publicity and get as damages the amount they would have made. For those of us that are not famous, we'll have to settle for very low damages, because we're probably not able to prove that we would've been financially injured by someone improperly using our image, name, or voice. Again, the rights and remedies for rights of publicity differ from state to state. This means, each state has different defintions of the right of publicity and different penalties for violating someone's right of publicity.
For example, California's definition of a right of publicity is a name voice, signature, photograph, or likeness of a person. In New York, it's a name, portrait, picture, or voice. This is a much narrower definition, thus if you don't use somebody's name, picture, portrait, or voice in New York, there's no right of publicity violation. Some states require registration to have rights of publicity of a deceased celebrity, including Nevada. As mentioned above, some states don't protect rights of publicity of deceased persons at all.
To summarize, we've learned that rights of publicity are rights that vest in individuals during life and may extend beyond death in certain states. The rights are different from copyrights or trademarks, and they're entirely about a person's likeness, image, voice, and name. Infringement can bring damages of a nominal amount for non-famous individuals or very substantial damages for celebrities. You can be sued beyond your state, in some cases, so it's smart to be cautious about using the name or likeness of anyone, particularly celebrities, whether they are dead or alive.
Intellectual property lawyer Dana Robinson guides viewers through these complex questions and more. He also addresses what constitutes infringement and discusses recent cases on rights of publicity and the first amendment, covering issues such as using a domain name, username, hashtag, or other "indicia of association" with someone's name.
DISCLAIMER: This course is taught by an attorney and addresses US law concepts that may not apply in all countries. Neither LinkedIn nor the attorney teaching the course represents you and they are not giving legal advice. The information conveyed through this course is akin to a college or law school course; it is not intended to give legal advice, but instead to communicate basic information to help viewers understand the basics of intellectual property.