How Artists Can Use Copyright Laws to Defend Against Right of Publicity Claims

Right of Publicity

A recent court case has officially defined right of publicity claims in the context of copyright laws, and the new rule could affect the way artists disseminate their work. Based on the new precedent set forth by the 8th Circuit Court of Appeal, copyright holders may be protected from state Right of Publicity claims if such a claim would infringe on their rights under U.S. copyright law. For artists, this means that a subject can’t go back and sue you under state law on a right of publicity claim if the court finds your work to be sufficiently expressive and non-commercial in nature as to warrant protection of federal copyright laws. And for models who pose for artists, this new ruling unequivocally confirms that models don’t hold copyright in works in which they’re featured.

But what is a right of publicity claim, and why would a subject be barred from seeking relief under these claims? How did the court arrive at its decision? We’ll discuss below.

The Players’ Case Against the NFL

In Dryer v. Nat’l Football League, three NFL players sued the NFL for using their images from game footage to create a number of films for NFL Films. All three of the players also participated in interviews for said films once they retired. Despite having given some kind of “permission” to the NFL to use these images, since they did consent to interviews, the players sued the NFL for the use of their footage under a state right of publicity claim. The NFL claimed they held the copyright in the work, which was sufficiently expressive in nature as to warrant its protection, and, therefore, the player’s had no right to bring a right of publicity claim. Finding that the NFL has “produced hundreds of these films, and have won awards for the creative elements they employ,” the court decided that the players were barred from recovering under right of publicity claims, since they don’t own the copyright in the video.

What is the Right of Publicity?

The right of publicity is codified in state law, and many states have adopted statutes that uphold a person’s right of publicity though they do vary from state to state. The right of publicity is the right to control the commercial exploitation of a person’s name, image or persona. The unauthorized use of an image would infringe on a person’s right of publicity, but only if the image is being used for commercial purposes (i.e. trade or advertising uses). The use of the name, likeness or persona for news, information, or public interest purposes is not a violation of the right of publicity. So for example, a celebrity’s photo in a newspaper probably wouldn’t constitute an infringement of their right of publicity, but it would if that celebrity’s image was being used to sell products without her consent.

While right of publicity laws do vary from state to state, generally speaking, a plaintiff can prove a publicity rights claim under the common law, by pleading and proving that a defendant:

  • used plaintiff’s identity
  • appropriated plaintiff’s name and likeness to defendant’s advantage, commercial or otherwise;
  • lack of consent;
  • a resulting injury

So, in order for a subject to recover on a right of publicity claim, his or her image must have been used for commercial purposes without their consent, and a resulting injury must have occurred – either they’ve lost money or damaged their career selling a product they wouldn’t endorse.

But the requirement that the work in question is “commercial” in nature does seem to draw a thin line. For example, a photographer hired to shoot a model for an ad campaign could be exposed to a lawsuit, but an artist who creates a piece using a model would seemingly be off the hook. But what if the piece eventually gets sold? Does the model have a claim for right of publicity then? According to this recent court case, she would if the work was sold in order to be used for commercial purposes – because a copyright holder’s rights are modified when the original use of the work changes, and the copyright holder receives a commercial benefit from the subject’s likeness. So, if an artist were to sell a photograph to a retailer in order to use that photo for an advertisement, and the artist failed to receive consent from the model in the photo, the model would have a right of publicity claim and the artist wouldn’t be able to defend himself under U.S. copyright law. But if an artist sold a photograph to a collector, who proceeded to hang the photo in his home, then the model wouldn’t be able to claim that her publicity rights were infringed upon.

How Copyright Law and the Right of Publicity Relate

The right of publicity has little to do with copyright law, yet these issues are often mingled because they tend to arise out of similar situations. A copyright exists when someone creates “original works of authorship fixed in any tangible medium of expression,” according to U.S. Copyright Law. That means that the rights acquired in such a work are held by the creator, the copyright owner, and apply to the work itself.

While most scholars in this area of law have generally held that a copyright cannot trump a state right of publicity claim, this 8th Circuit ruling turns that presumption on its head. The court pointed out that the purpose of the right of publicity is “the desire to provide incentives to encourage a person’s productive activities and to protect consumers from misleading advertising.” Then, it drew examples of situations in which the right of publicity and copyright law might intersect, choosing to adhere to the rule of thumb that a copyrighted work that’s commercial in nature could give rise to a right of publicity claim in a lawsuit. It used as an example a situation in which a subject was allowed to sue despite a protection of copyright, since the subject’s voice – which was originally used for creative purposes- was later used in a recording for advertisements for an unrelated product.

Based on the example above, it seems an artist could find himself without the copyright safety net if he or she were to sell a work without his model or subject’s consent, but that doesn’t necessarily mean that an artist is barred from selling an artistic work unless he has his subject’s consent.

In fact, the court agrees. In its opinion, the court issued a bright-line standard for determining whether the rights are equivalent: “When a right-of-publicity suit challenges the expressive, noncommercial use of a copyrighted work, however, that suit seeks to subordinate the copyright holder’s right to exploit the value of that work to the plaintiff’s interest in controlling the work’s dissemination.” In plain language, the court is saying that if a model or subject were able to recover on a right of publicity when an artist is merely exerting their copyright rights to sell and distribute the work, then the courts would unfairly be allowing a model to control a copyright that they don’t own. Only when an artist has turned around and used a model or subject’s image for a commercial purpose that he did not have prior consent to can a model or subject claim a right of publicity. But in all other situations, the right of publicity interests must yield to copyright.







About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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