Rights of publicity are rights that a person has to the use of their name, likeness, voice and persona on or in association with products or services as well as in association with their marketing or promotion. These rights are protected primarily at the state level by many, but not all, states.
For example, California Civil Code Section 3344 prohibits the misappropriation of a person's rights of publicity stating:
"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. "
The California statute, which is generally similar those enacted by other states, allows a party whose rights of publicity have been misappropriated to collect actual damages and the wrongdoer's profits associated with the wrongful use of the party's name or likeness. In addition, California's law also provides for a minimum damage award of $750 regardless of amount of actual damages actually sustained. Unlike the rights of publicity laws enacted by many other states, however, California's law authorizes a party to seek punitive damages for the misappropriation of their name or likeness. This is important because there is no statutory limitation regarding the size of a punitive damage award. And since the function of a punitive damages award is to punish the wrongdoer and deter similar conduct, it is possible that a single punitive damages award for misappropriation could financially crush a typical adult entertainment business.
So, adult entertainment businesses are well-advised that they should take appropriate precautions to avoid becoming exposed to the very serious and costly liability for misappropriation that could result if they, their affiliates or content providers use a person's name, likeness, voice or persona without explicit permission to promote a product or service; especially since claims of misappropriation of name or likeness occur more often in the adult industry than one might think. In fact, over the years our firm alone has handled dozens of cases that have involved a party's rights of publicity to some degree or another.
To help you recognize situations where a right of publicity problem could occur, here are some of the most common scenarios we've encountered where the issue of misappropriation of name or likeness arises in an adult entertainment context:
- Situations where a party uses a model's or performer's name or likeness without permission in banner advertising or pop-ups promoting the sale of website memberships, the purchase of live cam shows, video-on-demand, etc.
- Creation of a website by a party that uses an adult performer's name and likeness without permission on the splash page and/or other parts of a website falsely describing the site as the performer's website or the performer's "official" site.
- Use of a photograph depicting a performer to promote a website by an affiliate marketing program or an affiliate marketer where the program or affiliate either has no right to use the photograph in the first place, or the party lacks the additional requisite rights to use the likeness of the performer to promote the website.
- Use of a photograph of a person without their permission in an advertisement for an adult dating site where the advertisement falsely claims that the depicted person is a member of the dating site.
- Use of a performer's or other person's name in a domain name without the person's permission in order to attract online traffic that is, in turn, used to promote or sell goods or services.
- Non-authorized use of a performer's likeness in a photograph is reproduced in physical advertisements, such as billboards. This form of misappropriation has occurred several times in relation to billboard advertising for gentleman's clubs.
- Use of an adult entertainment performer's photograph in an escort service advertisement without the performer's permission.
- Association of a depiction of a performer with an adult toy product where such association falsely implies sponsorship of, or some other affiliation with, the toy or its manufacturer.
- Marketing products such sex toys falsely claiming to be reproductions of a performer's genitalia, for example, where packaging falsely claims the adult toy to be a vaginal replica of an adult film star's vagina.
- Marketing products comprising reproductions of a performer's genitalia or other parts, such as a penis dildo produced from a mold of a famous adult film star's penis, after the rights to do so have terminated.
- Depiction of performers in a false light while implying sponsorship, such as when an image depicting a nude female model is digitally altered to add a penis to make the model appear to be a transsexual for the purpose of advertising in a 900-line audiotext transsexual chat service.
Allegations of misappropriation of a person's name are also frequently additional claims in litigation principally regarding infringement of other intellectual property rights.
For example, it is common to see a misappropriation of name rights claim in an anticybersquatting lawsuit where there is an allegation of misappropriation of name rights regarding the name that appears in the disputed domain name. Also, rights of publicity claims are common in copyright infringement cases against a party that uses infringing materials to promote his or her website, web cam business, dating site, etc.
The easiest and simplest way to avoid costly litigation, and potentially crushing liability, is to get the necessary quantum of rights to use a persons name and likeness for all the purposes the content containing the person's name and/or likeness will be used.
This can be done at the time the content is created, by an appropriately drafted rights acquisition agreement and release form, or the rights can be acquired subsequently by a separate agreement.
What is certain, however, is the fact that the rights to use a person's name and likeness should be acquired in writing via a clearly written agreement.
Beyond the acquisition of rights described above, I have also found it helpful for my clients to acquire, by written agreement, a promise by models and performers not to sue my client should my client use content created by the model or performer for my client on or in association with any goods or services.
Additionally, I have also found it very useful in litigation on behalf of content-owning clients to acquire from the models and performers the rights to sue a party who misappropriates the rights of publicity of the person(s) depicted in the content.
This has often proven to be helpful in resolving copyright disputes favorably for my clients because, as I have previously indicated, a copyright infringer often also engages in the misappropriation of rights of models and performers by using the infringed materials depicting the models and performers to promote a website or other products or services.
Gregory A. Piccionelli is an intellectual property and adult entertainment attorney experienced in Internet matters and Federal Trade Commission matters. He can be reached at Piccionelli & Sarno at (805) 497-5886 or greg@piccionellisarno.com. This article is not intended to be, nor should be considered to be, legal advice. As usual, I strongly urge you to seek the counsel of a qualified and experienced adult entertainment attorney familiar with the types of legal issues discussed in this article.
