Understanding How Right of Publicity is Applied in the Entertainment Industry

Digital entertainment experiences utilizing artist likenesses are becoming increasingly popular, however, they can create legal pitfalls when the proper authorizations are not obtained. For example, the estate of comedian George Carlin recently settled a lawsuit against an AI-generated imitation of the comedian. In January, an unauthorized hour-long special was released called “George Carlin: I’m Glad I’m Dead” featuring an AI-generated voice performing Carlin-like material. The special was removed after the lawsuit was filed, with the estate of Carlin claiming violation of copyright as well as Carlin’s post-mortem Right of Publicity under California law.

In another example, the rock group KISS sold their music catalog, name, images, and likeness to Pophouse Entertainment for the sum of $300 million. At the end of their final concert on their farewell tour, digital avatars of the band performed, and going forward, Pophouse is overseeing digital KISS shows planned for 2027.

The difference between the aforementioned examples is that KISS is authorizing ongoing use of their likenesses, while the estate of Carlin did not. There is no such thing as a Federal Right of Publicity. Instead, protection varies state by state. For example, Tennessee has some of the most protective laws on this issue primarily due to the use of Elvis Presley’s name and likeness. This is not the same in all states.

The Right of Publicity is protected while the individual is alive, or up to 50 years after death if the person died after the statute went into effect on January 1, 1999. Earlier common law rights in Illinois did not protect individuals after death.

Under the Right of Publicity Act, an individual’s identity is protected from unauthorized “commercial” uses of their identity, which could mean their name, signature, photograph, image, likeness, or voice. This includes their actual identity or any other name by which an individual is known, such as stage names. With postmortem right of publicity, the right to authorize use of a person’s identities is passed to that person’s heirs or beneficiaries.

To promote First Amendment rights, Right of Publicity contains certain exceptions. Specifically, portraying a person in a work of art is protected so long as the work of art is not a commercial advertisement. An advertisement for a protected work of art, such as a TV advertisement for a protected film, would be protected. News reports, sports, public affairs, and other non-commercial uses are exempt. An author’s name can be used to identify them with their work, so long as the use is truthful. Professional photographers can display their works at their place of business or as part of their portfolios, unless the individual portrayed objects in writing to their exhibition.

If a Right of Publicity suit is successful, a plaintiff may recover their actual damages as well as the defendant’s profits from the violation. Punitive damages may also be available in appropriate cases, and an injunction could be sought with appropriate cause shown. An award of reasonable attorneys’ fees, costs, and expenses can be awarded to the prevailing party.

Right of Publicity claims are fact specific, so please contact Levin Ginsburg Partner Kevin Thompson if you have questions.