Publicity rights poised to become next big battleground in IP litigation as celebrities increasingly invoke their rights and courts recognize the importance of these rights for both living and deceased celebrities.
Rights of publicity are being exploited, enforced and protected more frequently than ever — and the damages awarded continue to rise. In the recent litigation between Woody Allen and American Apparel (#CV02475), CONSOR was engaged to calculate the fair market value for the unauthorized use of Mr. Allen’s name, image and likeness, resulting in a $5 million settlement in Woody Allen’s favor. “If the damages awarded in this and other recent cases are any indication, right of publicity damages may be set to grow as courts increasingly recognize the significance of these rights,” predicts Weston Anson, Chairman of CONSOR Intellectual Asset Management.
Rights of publicity protect against the unauthorized use of an individual’s name and likeness, and may be protected through rights of publicity law, trademark law or copyright law. These rights factor prominently in the pervasive athlete and celebrity endorsement deals evidenced across numerous forms of media.
Roughly half of the states have some right of publicity law. However, in some states, the right of publicity may no longer be enforced after the individual has died. For example, New York has refused to enforce postmortem rights of publicity in connection with Elvis Presley memorabilia. California is widely regarded as having the most comprehensive and far-reaching set of right of publicity statutes and precedents in the nation.
Courts tend to be more open to protect the name and likeness of an individual when these assets are exploited as a brand name. The patchwork of right of publicity statutes across various jurisdictions in the United States may mean that trademarks are the best way to assure a greater consistency of outcomes when using individual names as brand identification.