Personality and publicity rights


Personality rights are generally considered to consist of two types of rights: the right to privacy, or to keep one's image and likeness from being exploited without permission or contractual compensation, and the right to publicity use of one's identity, which is similar to the use of a trademark. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

Publicity rights in common law jurisdictions

Personality rights have developed out of common law concepts of property, trespass and intentional tort. Thus personality rights are, generally speaking, judge-made law, though there are jurisdictions where some aspects of personality rights are statutory. In some jurisdictions, publicity rights and privacy rights are not clearly distinguished, and the term publicity right is generally used. In a publicity rights case the issue to decide is whether a significant section of the public would be misled into believing (incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products. This is done by way of the tort of passing off.

The meaning of the law is best illustrated by principal cases on the subject.

The Henderson case [1969] RPC 218 was a decision of the High Court of New South Wales (both the first instance and appellate jurisdiction). The plaintiffs were ballroom dancers and they sued the defendant in passing off alleging it wrongfully published their photograph on the cover of a gramophone record entitled "Strictly for Dancing: Vol. 1". An injunction was granted on the ground that the use suggested the plaintiffs recommended or approved of the defendant's goods, or had some connection with the goods. The Koala Dundee case (1988) 12 IPR 508 was a decision of the Federal Court of Australia. The applicant was a script writer and actor whose fame came from the film " Crocodile Dundee". The respondents ran two small shops which sold clothing and other items of an Australian nature. The applicant sought an injunction to restrain the respondents from using the name "Dundee" in association with a composite image "the koala image". The applicant advanced a case in passing off alleging such use was calculated to induce the public to believe the goods sold were associated with the film or the character portrayed by the applicant in it. The court granted the relief holding that the inventor of a famous fictional character having certain visual or other traits may prevent other using his character to sell goods and may assign the rights to use that character. This "extended action of passing off" protects against the wrongful appropriation of a reputation, or wrongful association of goods with an image belonging to the applicant. In the Pacific Dunlop case (1989) 14 IPR 398, the Federal Court of Australia affirmed a decision which upheld an action in passing off. The plaintiff sued the defendants for a television advertisement which was easily recognizable as being a parody of a scene from the plaintiff's film "Crocodile Dundee". The Federal Court said the test was whether a significant section would be misled into believing that a commercial arrangement had been concluded between the defendants and the plaintiff under which the plaintiff agreed to the advertising.

England has followed this Australian development of the law. In the Mirage Studios case [1991] FSR 145, Browne-Wilkinson, V.C., after referring to the Australian cases of Children's Television Workshop v. Woolworths (NSW) Ltd. [1981] RPC 187 and Fido Dido Inc. v. Venture Stores (Retailers) 16 IPR 365, said the law as developed in Australia is sound. There is no reason why a remedy in passing off should not cover a case where the public is misled in a relevant way as to a feature or quality of the goods sold when an action is brought by the people with whom the public associate that feature or quality. An interim injunction was granted. The first plaintiff was the owner of the copyright in the drawings of fictitious humanoid characters known as " Teenage Mutant Ninja Turtles" and part of their business was to license the reproduction of these characters on goods sold by others. The first defendant made drawings of humanoid turtles characters similar in appearance to the first plaintiff's, utilizing the concept of turtles rather than the actual drawings of Turtles.

In Hong Kong, the main case on this point is the ongoing dispute between Cantopop singer/actor Andy Lau and Hang Seng Bank over the allegedly unauthorised use of Lau's image on credit cards.

Only in Jamaica in a 2002 case involving the estate of Bob Marley has it been found anywhere in a common law jurisprudence that a personality right may be transferred by disposition.

Personality rights in the United States

In the United States, publicity rights under federal law are seen as an offshoot of the Lanham Act. Unlike other common law jurisdictions, where personality rights (publicity and privacy) are extinguished with the death of an individual, personality rights in the United States are a chattel, which are capable of being conveyed by testamentary disposition. A recent example is John Dillinger's rights of publicity, as seen in Ken Phillips, Mark Phillips and Dillinger's, Inc. v. Jeffrey G Scalf, a 2003 Indiana Court of Appeals case. The operators of Dillinger's restaurant are alleged to have violated the right of publicity of Jeffrey G. Scalf, the great-nephew of the 1930s gangster and bank robber John Dillinger, in using without authorisation Dillinger's name, image, and likeness in connection with the restaurant. In March 2003, eight members of the cast of " The Sopranos" alleged that electronics retailer Best Buy used their images in newspaper ads without permission. In September 2002, Tom Cruise and Nicole Kidman sued luxury goods company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.

In the July 2003 case of Tiger Woods v. Jireh Publishing, however, a painting of the famous golfer Tiger Woods and others is protected by the US Constitution's First Amendment and treads neither on golfer's trademarks or publicity rights. Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit.

These few examples illustrate that litigation on rights of publicity in the United States is very active, rapidly changing this area of the law.

Personality rights in civil law

In contrast with common law jurisdictions most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate someone's privacy to speak about his medical condition, if he were the President of France, one can speak about his public life and even a famous person such as Princess Caroline of Monaco is entitled to live her private life without the interference of paparazzi with telescoping lenses.

Unlike most common law jurisdiction the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmirched by such publication.

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