Re: USA Copyright Act

The UK doesn't recognize a right of publicity, or commercial appropriation of likeness tort. Moreover, the UK unfair competition law is quite a bit more restrictive than that recognized in some other countries (although some relatively recent cases have started to broaden it slightly in the character merchandising arena). In fact, if the few US cases that have dealt with conflict of law in the right of publicity are correct that the applicable law in determining whether the right of publicity survives death is that of the jurisdiction in which the celebrity was domiciled at time of death (see, e.g., the Day in Hollywood/Night in Ukraine case), then Lady Di's likeness could be used in the US now without violating her right of publicity (I'm assuming she was domiciled in the UK). (Of course, don't consider this legal advice!)

Incidentally, with all due respect, I believe your comment as to the application of right of publicity to copyrighted works in the US is an oversimplification. There are things that one could do with a copyrighted work embodying a person's likeness that would not violate their right of publicity. For example, I think that a US court would reach a different result than the Quebec court did in the case last spring of a photograph of a young woman taken in a public place and published in an "art" magazine. The Quebec court found that to be a violation of the subject's privacy rights. I doubt that such a use would infringe rights of publicity in the US. Moreover, the extent of preemption of right of publicity by copyright law seems to be still uncertain under US law.

The relationship between right of publicity and copyright is not the same as the relation between the law of defamation and the right of publicity. Defamatory statements (and portrayals) are not protected by the First Amendment, whereas some "truthful" uses of a person's name and likeness are.

The 96 Performers Treaty was for audio performers. I believe work is still ongoing on a treaty dealing with audio-visual performers. Implementation of such a treaty will presumably be quite controversial (more controversial than the audio performers). Finally, not all civil code countries recognize a "portrait right" (the right of the subject to prohibit the use of the copyright).

Incidentally, the Loyola Entertainment Law Journal has a forthcoming issue with articles on the right of publicity in several other countries, including the UK.

Prof. Jay Dougherty
Loyola Law School
fjdoughe[_at_]lmulaw.lmu.edu
213-736-1461 Received on Mon Jul 27 1998 - 19:36:45 GMT