Re: USA Copyright Act

On 98-07-24, Bernadette Attwell <b.attwell[_at_]open.ac.uk> wrote:
>
> Could someone explain what a 'likeness right' is in the context of US
> Copyright Law? Cheers Bernadette (UK)

The name used to designate this 'likeness right' in US law is the 'right of publicity'. The right of publicity protects against the unauthorized use of a person's identity or persona in a way that is likely to cause harm to its commercial value.

The right of publicity is not regulated under the Copyright Act (the US has not ratified the Rome Convention of 1961, for the protection of performers and producers of phonograms) or any other federal statute (it's only incidentally protected through the unfair competition provisions of the Lanham Act). It was born as a common law right at a state level. Then, some states codified it under publicity right statues. Today, it's regulated either as a state common law right, or a state statutory right or both. It varies from state to state. Doctrinally, the right of publicity has evolved from a type of privacy tort into a sort of property right.

The right of publicity has been recognized by the American Law Institute in its Restatement (Third) of Unfair Competition as the Appropriation of the Commercial Value of a Person's Identity. "The Right of Publicity. One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability for [monetary and injunctive] relief." With the inclusion of the right under the law of unfair competition, the commercial and property characteristics of the right are clearly acknowledged. (it was formerly classified as one of the four types of invasion of privacy on the Restatement of Torts which created much of the confusion in the courts between the privacy and publicity rights)

[I've posted an early draft of my article "The Right of Publicity on the Internet" at <http://www.iies.es/bd/publicity/index.htm>. The section about the history of the right might be of your interest.]

In practice, the right of publicity limits the exclusive rights of copyright owners, just like defamation law, for example. Whenever a copyrighted work includes the identifiable identity of a person, the commercial use of that work would require not only a license from the copyright owner but also a license from that person pictured in the work (safe some free speech exceptions). The right of publicity would prevent the distribution of the work by the coypright owner. Same for the defamation law; despite the commercial use of the work having been authorized by the copyright owner, defamation law would limit the right of the licensed copyright owner to distribute a defamatory work.

The common law right of publicity has been used to protect the performer's rights to require compensation for the commercial use of their characters/likeness in their unfixed performances (eg, see Zacchini v. Cripps-Howard Broadcasting Co.), or, as portrayed in a copyrighted work (eg, White v Samsung or Wendt v Host). Note that signatory countries of the Rome Convention (UK is one) have provisions in their copyright acts that grant performers this 'publicity right' type of protection, under the label of neighboring rights (eg, the ditribution/public performance/reproduction of a musical/AV work would require the consent by the performers). I suppose that the lobbying of the entertainment industry against the ratification of Rome had something to do with this lack of protection in US copyright law. Does anybody know whether this is correct and if there's any chance that the US may implement the december 96 WIPO performer's treaty (WPT), the companion to the WIPO copyright treaty (WCT)?

In civil law jxs, the likeness right is recognized in the constitutions or the civil law codes as a personality right (right on one's image/honor/privacy) but it's also regulated in the copyright acts. This duality shows the historical tension on the characterization of the right as a patrimonial right and as a personality right. In many civil jxs, the right was born in the author's right realm with the boom of photography (second half of the XIX century) but later on, this patrimonial feature was weakened by the recognition of the 'likeness right' as a personality right by the jurisprudence, the doctrine, the national civil codes and the national constitutions (from 1900 and, mainly, after the Universal Declaration of Human Rights in 1948). Today, the 'likeness right' remains a hybrid, a personality right with patrimonial features.

I'm curious to know how is the likeness right right protected in the UK. BTW, I've read somewhere that the UK patent office recently denied the trademark registration of Lady Diana's likeness. The UK PTO denied the (disturbing) petition, filed by the administrators of Lady Di's Fundation, and held the image to belong to the 'entire world'.

CF Ludena
<ludena[_at_]aol.com> Received on Sat Jul 25 1998 - 14:36:11 GMT