Right of Publicity
Around the World
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Speakers
• Mike Rodenbaugh, Yahoo! Inc.
• Avril Martindale, Freshfields Bruckhaus Deringer
• Paula Guibault, The Coca-Cola Company
• William Gallagher, Golden Gate University School
of Law
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Introduction
• Right of publicity is a property right, infringement is a tort.
• Less consistently defined and applied internationally
than is trademark or copyright law.
• In US, substantive law differs among the states.
• However, some basic principles tend to apply
everywhere.
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Basic Principles
• Definition – inherent right of every individual to control
the commercial use of his or her identity.
• Test for infringement – unpermitted use which will likely
damage the commercial value of this right, and which is
not immunized by protections for free speech and press.
• Transfer rules – assignments and licenses
• Postmortem rights are not uniform
• Statutory exemptions are not uniform
• Freedom of Speech is often in conflict
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Differences with Trademark Law
• Persona identifies one
human being
• Infringement where
persona is identified
• Goodwill and quality
control protections not
needed for valid
assignment
• TM is a word or symbol
that indicates commercial
source
• Infringement where
identical use or likelihood
of confusion
• In US, must assign with
goodwill and quality
control protections
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Freedom of Speech
• Publishers often accused of infringing
rights of publicity and privacy
• Inconsistent case results, but the more
prominent and commercial the use, the
more likely to be found infringement
• Conversely, the more transformative and
creative the use, the less likely to infringe
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Differences in Approach – U.S. vs.
Rest of World
• Outside of US, less focus on freedom of
speech and creativity of use
• More focus on:
– balancing right of privacy against public
interest
– balancing individual’s permitted exploitation
against fair use by third parties
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Publishers – Liable
• Argentina: Maradona, injunction against publication of book: “Diego
Maradona: The 1000 most famous phrases in his career.”
• China: Dong Yun, although photo used for a news report, court held
that report had “content and effect of an advertisement,” and so
used for commercial purpose.
• Germany: Princess Caroline, European Court of Human Rights
holds that Princess’ right of privacy invaded by publication of photos
of her in daily life, in public.
• Spain: Cortina, photos of celebrities on holiday could not be
published without their consent.
• UK: Campbell, House of Lords finds Daily Mirror liable for
publishing details and photos re supermodel’s treatment for
narcotics addiction.
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Advertisers -- Liable
• Austria: Schussel, Prime Minister forces
McDonald’s to stop implied endorsement in TV
commercial
• Netherlands: Kalou, court enjoins insurance
company from using video of football player, and
look-alike actor, in TV commercial
• UK: Irvine, infringement via doctored photo in
marketing materials, showing race car driver
apparently using defendant’s radio device
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Conflict with Free Speech
• Schwarzenegger “Bobblehead” doll case:
– Oak Productions, Inc. v. Ohio Discount Merch., Inc. (L.A.
Superior Court/C.D. CA 2004)
• Squarely raised novel issues re scope of
Right of Publicity vs. First Amendment
defense—Is the doll “transformative”?
• Case settled, but issue remains: was
Right of Publicity a tool for censorship?
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•
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Merchandise, Int’l cases
• China: Baizhi, movie star awarded $250k for
unauthorized use of her image on cosmetics
packaging.
• France: Le Galon, court enjoined publication of
video game featuring plaintiff’s unauthorized
image.
• Germany: Kahn, court enjoins EA from using
image of goalkeeper in video game.
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C.B.C. v. MLB Advanced Media and
MLB Players Association
• 443 F.Supp.2d 1077 (E.D. Mo., 2006)
• Does the Right of Publicity preclude the
unauthorized use of baseball players’
names and stats in fantasy sports
leagues?
• Does the 1st Amendment to U.S.
Constitution trump any such right?
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C.B.C. v. MLBAM and MLBPA
• Elements of Right of Publicity claim
under Missouri Law
– 1) Use of name as symbol of identity
– 2) Without consent
– 3) With intent to obtain commercial
advantage
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C.B.C. v. MLBAM and MLBPA
• From 1995-2004, C.B.C. licensed baseball
players’ names, nicknames, numbers,
likenesses, signatures, pictures, playing
records, biographical data from MLBPA
• When license was not renewed, C.B.C.
sought declaratory relief that use of names
and stats in operating its sports fantasy
league business did not violate, inter alia,
the players’ Right of Publicity
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CDM (CBC) Site: Commercial
Exploitation or Factual Dissemination?
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Names and Stats or Players’ Identity?
Who is this?
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Does this create an association
between CDM and MLB players?
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C.B.C. v. MLBAM and MLBPA
• Court:
1) No “Commercial Advantage” because
no use of pictures/likeness—only names
and stats
2) No use of names as “Symbol of
Identity”
3) Ruling consistent with policy of ROP
statute
4) First Amendment trumps ROP for use by
fantasy sports leagues
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C.B.C. v. MLBAM and MLBPA
• Important ruling properly limiting Right of
Publicity?
• Use of Name/Stats, without more, does not
violate Right of Publicity
• Future impact unclear, case is on appeal
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Athletes, int’l
• Argentina: Chilavert, OK to use name of famous
goalkeeper in a promotional game, along with names of
400 other players in the league.
• France: Real Madrid, OK to use names and pictures of
footballers to promote gambling websites, since court
agreed they were used only to provide information about
the games open to betting, and not to promote the
bookmakers’ commercial activities.
• France: Domenici, OK to use unauthorized picture of
famous rugby player on cover of rugby instruction
manual. But see, Benguigi, NOT OK to use singer’s
unauthorized image on cover of biography, enjoining
further editions of book.
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• France: Cantona, footballer successful with claim against
sports magazine that devoted an issue entirely to the plaintiff.
• Italy and Spain: Panini, unauthorized use of footballers’
photos for a card set, breached rights of players and their
licensee.
• Mexico: Club America, footballers force website to cease
offering their images for sale.
• Mexico: Pepsi, ambush marketing at World Cup, via use of
images of national team coach and players, held an
infringement of Coca Cola’s sponsorship rights, Pepsi
commercial enjoined.
• Spain: Martin, video of bullfighter’s death outside the ring
held to violate the rights of privacy of the bullfighter and the
plaintiff.
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