On “Publicity Rights”
Lindsay Lohan claims that a surveillance tape of her stealing a necklace violates her publicity rights
Charlie Sheen used publicity rights claims to block woman’s right’s activists from selling t-shirts critical of the warlock’s treatment of women.
And here at Avvo? Well, we’re no strangers to lawyers claiming that our listing them on Avvo infringes on their trademarks or publicity rights.
The concept of a “publicity right” is the red-headed stepchild of intellectual property law, a creature of state law not constrained by the statutory limits or decades of case law underlying related claims such as trademark, copyright and defamation. Which explains, to an extent why we see such overreaching claims in this area.
In some cases (like Sheen’s), raising publicity rights is simply an end run on an obviously invalid trademark claim. In others – like the ones we see at Avvo from time to time – people confuse the commercial nature of the alleged “infringer” with a use of someone’s name or image in commerce.
While that may seem like a confusing distinction, it’s actually dead simple. It doesn’t matter if the person or company using your name is a commercial entity. What matters is whether they are specifically trading on your name, in a way that isn’t otherwise protected by the first amendment. And the first amendment provides broad latitude to use trademarks and names for the purposes of description, reporting, criticism, parody, etc. Or creating a directory of doctors and lawyers.
So: while claiming that Lindsay Lohan endorses your line of stylish home monitoring anklets would violate Ms. Lohan’s publicity rights, publishing an article about her latest exploits in a for-profit media vehicle would not. Because if it were, we couldn’t have The New York Times – much less TMZ. And what kind of world would that be?
