Written By: Leah C. Stevenson, Esq.
What are publicity rights?
The right of publicity is generally understood to be the right of a person to control the recognizable aspects of their identity, including their name, image, and likeness (“NIL”) and to prevent commercial appropriation of their identity by others without permission. While most people associate the right of publicity with well-known celebrities and public figures, it is important to note that the right of publicity extends to any person’s name, image, and likeness and every person has the right to safeguard their publicity rights from misappropriation for commercial gain without their permission. To establish a cause of action for a right of publicity violation, a plaintiff must show (i) the validity of the plaintiff’s right of publicity; and (ii) that this right has been infringed upon by the defendant.
Are publicity rights recognized after death?
Some states recognize the right of publicity as a transferable property right that survives a person’s death. Under this rule, the right of publicity is considered a freely transferable, licensable, and descendible property right which extends the right to the estates of deceased individuals. However, these so-called “postmortem” rights are usually limited and they can vary based on state law. Almost all courts follow the rule that whether a postmortem right of publicity exists depends on the state law where the deceased individual was domiciled at the time of their death.
It is important to know which states do and do not recognize a post-mortem right of publicity as a claim for improper use or exploitation of a deceased individual’s publicity rights cannot prevail if the state they were domiciled in does not recognize postmortem publicity rights.
Tennessee was one of the first states to recognize the postmortem right of publicity based on a famous case that involved the estate of Elvis Presley. Now, Indiana and Oklahoma recognize a 100-year postmortem right of publicity which provides even more protection to the recognizable aspects of a person’s identity.
More notably, California recognizes a 70-year post-mortem right of publicity that allows the transferable property right to survive decades after death. Cal. Civ Code §3344.1 provides a cause of action for the unauthorized use of a deceased “personality, name, voice, signature, photograph, or likeness” in any manner or for the purpose of advertising and promotion. In a famous federal case in California, the estate of Marilyn Monroe could not obtain relief for a right of publicity violation in California, since Marilyn was found to have been domiciled in New York at the time of her death. Unfortunately, New York did not recognize a postmortem right of publicity at that time and thus the estate of Marilyn Monroe was unable to assert a proper right of publicity claim.
How do publicity rights apply to music artists and public figures in the music industry?
Whether someone is a well-known public figure or a music artist who is just starting out, the right of publicity and the ability to safeguard one’s name, image, and likeness from misappropriation does not just extend to well-known celebrities, but to all people as well.
For example, the unauthorized use of the names, images, or likeness of living individuals (and well-known celebrities) Rihanna, Beyonce, or Adele for commercial exploitation would infringe upon their right of publicity. Furthermore, the use of Michael Jackson’s NIL would be protected by the 70-year postmortem right of publicity as he was domiciled in California at the time of his death. Any violation of Rihanna, Beyonce, or Adele’s publicity rights or Michael Jackson’s postmortem publicity rights would surely be inviting a slew right of publicity claims and lawsuits.
However, there is a fine line of what is permissible under the law of publicity as it relates to celebrities. The use of the name, likeness or persona for news, information, or public interest purposes is not a violation of the right of publicity. With this in mind, artists and other public figures cannot prevent the use of their photos in celebrity websites, magazines, and other forms of media. So, if you ever wonder how tabloids can use celebrity’s images and names to sell stories without violating their publicity rights… this is how they are able to do it.
In the music industry, an artist’s right of publicity is vastly important to their brand and how they are presented to the public. When artists work with brands and companies, they grant these companies the right to use their name, image, and likeness to promote the respective products and services. More importantly, the concept of publicity rights in the music industry comes up frequently as record labels, distributors, media outlets, and other third parties want the right to use music artists’ names, images, and likenesses to promote products and services for commercial reasons.
For artists who are signed to record labels, a recording artist is usually required to make a grant of publicity rights in their exclusive recording agreement with the record label. The grant of publicity rights includes the right for the record company to use the artist’s name, image, likeness, and personal indica in connection with the commercial exploitation of the artist’s music and other products or services. From a legal perspective, music artists need to be fully advised about the grant of rights to record labels and other third parties as they are knowingly allowing these parties to exploit their publicity rights to further their career, exploit their music, and hopefully gain more exposure.
How important or a music artist’s publicity rights?
For music artists, their name, image, and likeness are their brand these aspects of their identity are integral to the overall marketing and promotion of their music, merchandise, and brand endorsements as well. Although music artists often grant these rights to record labels and other brands, an artist should never allow a third party to use their NIL in connection with the commercial promotion of any products or services that do not align with their personal brand. Furthermore, the proper use of an artist’s name, image, and likeness is tantamount to the success of an artist’s personal brand in the entertainment industry.
DISCLAIMER: The information provided on this website is solely for educational purposes and does not constitute legal advice. Instead, all information, content, and materials available on this website are for general informational purposes only. This website is not intended to create an attorney-client relationship between you and Leah C. Stevenson, Esq. and you should not act solely on the information given on this website without seeking the advice of a licensed attorney.
