Intellectual Property Law

No, Right of Publicity Statutes Prevent You from Using Britney's Face

By Michael Atkins

In the wake of American Apparel’s billboards featuring Woody Allen, and Mr. Allen’s lawsuit in response thereto, Mainstreet.com asks, “Can You Use Britney’s Face To Promote Your Bake Sale?” The short answer is no, not without her permission. The piece cites me as saying statutory and common law rights of publicity tend to protect celebrities and ordinary folks alike from the “un-consented use of someone?s name, voice, signature, and likeness and, it doesn?t only protect celebrities.”

?Celebrities usually deal with these issues the most because their images are everywhere but the law protects all people.?

The reporter asked an interesting question that didn’t make it into print: how can celebrities protect themselves from having their right of publicity violated? I thought that was a darn good question.

Here’s my response: the celebrity should (1) establish a strong licensing program that he or she can refer potential advertisers to (who then can decline the request), since the lack of any such program can encourage infringing look-a-like and sound-a-like ads; and (2) sue vigorously and publicly when his or her rights are invaded in order to deter future infringement. Other than that — and suing to enjoin violations before they occur — celebrities are mostly stuck with suing after the fact, assuming their state’s statute or common law remedies such a harm. Such is life on the A-list.

Washington is one of the twenty-or-so states that has a right of publicity statute. This weekend I’ll discuss our legislature’s recent amendments to RCW 63.60.010, et seq., which become effective in June.

Full post as published by Seattle Trademark Lawyer on April 04, 2008 (boomark / email).