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Navigating High-Tech Complications for the Right of Publicity image

Navigating High-Tech Complications for the Right of Publicity

An Executive Voices Blog by Jonathan Faber, Managing Partner & General Counsel of Luminary Group LLC

Whether it’s an AI-generated George Carlin comedy special or salacious fake images of celebrities like Taylor Swift, the increasing use of artificial intelligence and deep fakes—combined with the viral nature of social media—means every licensing industry participant needs to have a functional awareness of the Right of Publicity.

The Right of Publicity is the right to control commercial use of one’s identity. Not every occurrence of a famous personality is a licensed use or an infringement, but both scenarios abound. If some identifiable aspect of a person is the focus of a product or campaign, or if an advertisement or social media post relies on familiarity with the person, then it may require permission from the person or their estate. If permission was not secured, it could lead to an infringement action.

This is especially important because, from Super Bowl advertising to biopics to food and beverage products, the Right of Publicity is a tool frequently used by the licensing industry. It may take the starring role in celebrity-branded products, or it may take a supporting role in advertising and social media strategies that use the name, image, or likeness of a well-known personality (living or deceased). Done properly, Right of Publicity licensing benefits from the attributes that celebrity embodies as well as their following.

But there are limits on the industry’s use of the Right of Publicity. It is a state-based property interest in the U.S., so each state determines the parameters of recognition. Presently, 25 states have Right of Publicity statutes, and the rest generally recognize the Right of Publicity through common law. In Indiana and Oklahoma, the post-mortem term is 100 years after death. In California and Washington, it is 70 years. In Tennessee, the rights never expire as long as use continues.

One best practice is to ensure commercial use of a personality conforms to the standards of jurisdictions like California, Washington, or Indiana since these states have robust protections for living and deceased personalities. For international campaigns or partnerships, however, there are even more considerations as different countries have different requirements.

In addition to the ubiquity of AI and deep fakes, recent industry trends are bringing the Right of Publicity to the forefront. A number of investors have purchased the rights to high-profile music catalogs with Name, Image, and Likeness rights woven into the agreements, creating a foundation for new consumer products and location-based entertainment offerings inspired by the musicians. For example, Bob Dylan sold his catalog for $300 million and Bruce Springsteen sold at $500 million. Among other advantages, having the Right of Publicity in place when licensing these assets simplifies the approval process and provides added value.

When the proper protocols are not followed, however, damages for Right of Publicity infringement can be substantial.

For many iconic personalities, living and deceased, there is a mechanism in place for monitoring the marketplace and responding to unauthorized uses. Licensees, manufacturers and advertising agencies should have qualified representation with Right of Publicity experience reviewing activities, including social media. After all, licensees and advertisers who utilize the Right of Publicity with authorization should not have to compete against those who attempt to skip the licensing process.

When it comes to Right of Publicity infringements, the maxim “it’s easier to ask for forgiveness than permission” is precarious. The learning curve may seem sharp, but with effort and discernment, the Right of Publicity can certainly be navigated. Do not tiptoe around using identifiable aspects of someone’s persona, even in a seemingly innocuous social media post.

In the same way that beloved brands create a strong emotional connection between consumers and licensed products, the use of the Right of Publicity in a product line or advertising campaign can be incredibly effective in evoking the ideals and attributes audiences associate with a notable person. For many organizations in the global brand licensing industry, the Right of Publicity could very well be the right move in connecting with consumers.

Jonathan Faber is Managing Partner and General Counsel of Luminary Group LLC, the exclusive representative of Babe Ruth, Jesse Owens, Vince Lombardi, John Wooden, Major Taylor, and others. Faber is often an expert witness in Right of Publicity valuations, including in relation to the Prince estate as well as litigation involving Drake, the Ramones, Zooey Deschanel, and many others. www.LuminaryGroup.com 

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