Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...
By Blake Brittain
March 26 — A “boom time” for right of publicity law goes hand-in-hand with the rise of social media, participants in a March 25 panel discussion at the American Bar Association's Annual Intellectual Property Law Conference concluded.
The ability to advertise using people’s names and images on the Internet and the rapid growth of commercial advertising on social media have been driving forces behind many new right of publicity issues, according to participants in a discussion titled “The Odd Couple: Rights of Publicity and Social Media.”
Social media started solely as a way for people to connect, Cydney A. Tune of Pillsbury Winthrop Shaw Pittman LLP, San Francisco, said, but it has changed rapidly to become an advertising platform for many businesses.
Think “revolution instead of evolution,” Tune said. And the tendency of marketers to try “exciting, new things” with new technology creates complex situations.
Some of these cutting edge cases, cited by Dale M. Cendali of Kirkland & Ellis LLP, New York, included Duane Reade's tweeting of a paparazzi photo of actress Katherine Heigl leaving one of its stores, a Samsung television ad with a robot designed to look like “Wheel of Fortune” presenter Vanna White, and a General Motors ad with Albert Einstein's head photoshopped onto a bodybuilder's physique, and all of these happened without authorization from the proper parties.
Cendali and Tune also said that social media is challenging traditional ideas of what a celebrity is, citing YouTube celebrities with millions of views on the site who endorse products, but do not have a presence in traditional media like television or film.
Because the vast majority of right of publicity cases have been settled, there is little precedent to help predict what will happen on a given issue.
A patchwork of different state laws, without an overarching federal right of publicity statute, further complicates things.
As Cendali pointed out, personality rights in states that recognize a right of publicity vary greatly.
For example, New York law offers only a nondescendible right in names and likenesses, but California law offers a more comprehensive, descendible right in names, signatures, photographs, images and likenesses.
Cendali said that creating a national right of publicity law would be difficult based on the conflicting interests involved in the debate.
“There has been talk, many times over the years,” about passing a national right of publicity law, Cendali said. “The trouble is, the people who tend to represent entertainers feel the statute should have certain characteristics like the California statute, and people who don’t represent celebrities tend to feel like it shouldn’t have a descendible right of publicity” among other characteristics.
“And for whatever reason there are not a lot of congressmen eager, historically, to try to resolve this,” Cendali said.
To contact the reporter on this story: Blake Brittain in Washington at email@example.com
To contact the editor responsible for this story: Tom P. Taylor at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)