What do former UCLA Bruin basketball star Ed O’Bannon, troubled actress Lindsay Lohan and deposed former Panamanian dictator and convicted drug lord Manuel Noriega have in common? All three are suing video game developers (and, in O’Bannon’s case, also the NCAA) alleging that their names and/or likenesses, i.e., their “rights of publicity,” have been unlawfully commercialized as part of a video game.
Five years ago, Ed O’Bannon, who was a star on UCLA’s 1995 national championship basketball team, filed a lawsuit against the NCAA and the Collegiate Licensing Company, alleging violations of the Sherman Antitrust Act and of actions that deprived him of his right of publicity. He agreed to be the lead plaintiff after seeing his likeness from the 1995 championship team used in a video game without his permission. Other notable athletes (such as Bill Russell and Oscar Robertson) later joined in the class action suit. In addition to the NCAA, the original defendants in the suit included video game giant Electronic Arts. EA and another original defendant, The Collegiate Licensing Company, agreed to a $40 million settlement to be dismissed from the case. The O’Bannon suit against the NCAA finally went to trial and recently concluded and is awaiting the judge’s verdict on the anti-trust claims.
Within the past month, actress Lindsay Lohan filed a lawsuit against the makers of the very successful “Grand Theft Auto” video games. In her suit, she claims the latest installment in the “GTA” series used her image for a character without her permission.
Just last week, it was reported that former Panamanian military strongman Noriega filed suit against Activision Blizzard, Inc. for using his name and depicting him as a “kidnapper, murderer and enemy of the state” in the top selling video game, Call of Duty: Black Ops II. Noriega’s lawsuit claims that the game’s portrayal of him and use of his name “translates directly into heightened sales” for Activision.
I should point out here that, despite Noriega’s allegations that his “reputation” has been damaged, he served 17 years in prison in the US on a drug-trafficking conviction and several years following that in French jails for drug trafficking and money laundering. He currently faces two 20-year sentences in Panama for the slayings of two political opponents in the 1980s.
So, this lawsuit really is NOT about his reputation. Like the O’Bannon and Lohan suits, it IS about the unauthorized commercialization of a famous person’s name and likeness—his “right of publicity.”
So what IS the “right of publicity?” In very broad terms, it is the right to prevent the commercial exploitation of one’s name, likeness and image. However, unlike copyright law, there is no single Federal law governing the right of publicity. Rather, it is a right that exists under various state laws. Right now, twenty-eight states recognize some form of the right of publicity, either by statue of under common law (“common law” is a term used for those laws which are laws or principles which derive their authority not from statutes but from historical precedents and the judgments and decrees of the courts recognizing, affirming and enforcing such laws). The following states have right of publicity statutes that superseded any common law right of publicity in those states: Indiana, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Virginia and Washington. The following states do not have a right of publicity statute, but recognize the existence of the law under common law: Alabama, Arizona, Connecticut, Georgia, Hawaii, Michigan, Minnesota, Missouri and New Jersey. The following states have both right of publicity statutes and common law rights: : California, Florida, Illinois, Kentucky, Ohio, Texas, Utah and Wisconsin. Pennsylvania enacted a right of publicity statute in 2002, but the statute does not state whether or not its enactment superseded existing common law in that state.
It is important to keep in mind that these laws are NOT uniform and vary in several key areas: what aspects of identity are protected?; does protection extend after death of the personality?; how long does such protection last?; what remedies are available for misappropriation of the right of publicity?; does the individual have to be “famous” to have a right of publicity?; and is prior exploitation of the right of publicity a prerequisite for protection against others’ usage?
Because the law in this area varies from state to state, where the suits are brought can be very important. Most of these laws state that the protection afforded is for legal residents of that state, but even that is not uniformly applied. For example, New York’s right of publicity law states that it does NOT survive the death of an individual. On the other hand, under California law, the right of publicity survives for fifty years. Then there is Tennessee law, where the right of publicity survives in perpetuity (as long as the right continues to be exercised). So, one may choose to bring suit in Tennessee after the death of the celebrity because the law is more favorable in that state if there is some connection to Tennessee in the case (for example, the defendant is there or a substantial number of sales took place there), as opposed to a state that does not have a survivable right of publicity. If the celebrity is alive, they would attempt to bring such a suit only in a state that recognizes the right of publicity. This practice of filing where the law is more favorable is referred to as “forum shopping.”
Another key issue with all of these right of publicity laws is the legal balancing act between enforcing this property rights vs. allowing for free speech under the First Amendment. For example, if a use of a person’s name and likeness is in connection with news reporting or research or parody, the First Amendment would weigh very heavily in favor of allowing the use. Oftentimes, the courts are forced to weigh the competing interests of these two critical factors in determining whether or not to find a misappropriation of the right of publicity. What if, for example, a video game is a form of social commentary about a newsworthy individual such as Noriega?
Pennsylvania is a good example of the confusing state of this property right.
Pennsylvania’s right of publicity statute, which became effective in 2003, provides for a cause of action for any person whose name or likeness has commercial value and is used for any commercial or advertising purpose without the written consent of such person. Under Pennsylvania law, a “Commercial or Advertising Purpose” means the public use of a person’s name or likeness: a) on or in connection with offering for sale of a product, merchandise, goods, services or businesses; b) for the purpose of advertising or promoting products, merchandise, goods or services of a business; or c) for the purpose of fundraising. The right of publicity under Pennsylvania’s statute lasts during person’s lifetime and for 30 years following death. The rights can be enforced by: the person, the parent/guardian of the person, if a minor; or if deceased, by any party (including an entity) authorized in writing to license the commercial or advertising use of the person’s name and likeness during the person’s lifetime or by the person’s heirs.
Under Pennsylvania’s law, the right of publicity applies only to natural persons. For example, a CEO of a company has a cause of action if his name/likeness is misappropriated, but his corporate employer does not. Also, it does not apply to fictional characters. For example, there is no right of publicity recourse for taking the Lone Ranger image (although there may be copyright claims). Since Pennsylvania’s law only applies if the name or likeness used has “commercial value,” it might not protect the use of the name or likeness of people who are not famous. It is not clear from statute if “commercial value” must exist prior to the use of the name/likeness or can arise in context of the fame-creating event. No reported decisions interpreting this law exist yet.
There are also several key exceptions to Pennsylvania’s right of publicity statute. No action can be brought if: a person appears only as a member of the public and is not identified by name; the use is in connection with a news report (1st Amendment Issue); used for an “expressive work” which is defined as “a literary, dramatic, fictional, historical, audiovisual or musical work regardless of the communication medium by which it is exhibited, displayed, performed or transmitted” unless used for commercial or advertising purpose; a person’s name/likeness is used in connection with “an original work of fine art.” “Original work of fine art” is NOT defined under the statute. I call this the “Andy Warhol Exception” in honor of Pittsburgh’s native son who became famous for creating lithographs of famous people (ranging from Marilyn Monroe to Chairman Mao) without seeking permission to do so. Under many states’ laws, works such as this would be deemed to be right of publicity infringements, but not under Pennsylvania law.
Pennsylvania’s right of publicity statute, like the other states’ statues, is unique to Pennsylvania. Because the laws regarding the right of publicity vary so widely from state to state, this area of the law remains one of the most muddled in the entire area of intellectual property.