Have you ever wondered what you’re worth? No, not your “net worth” (i.e. the cumulative value of your assets less any debts or liabilities), but the commercial value of your name, identity, image or likeness. Yes, you have a right of publicity: the right to control the use of your name, picture, voice, image or likeness, and to prevent another from using the same for commercial benefit without your consent.
New Jersey, like most states, recognizes this right of publicity. The right of publicity “signifies the right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit.” Hart v. Electronic Arts, Inc., 2010 WL 3786112 *5, (D.N.J. Sept. 22, 2010; citing McFarland v. Miller, 14 F.3d 912, 918 (3d Cir. 1994); Prima v. Darden Rest., 78 F.Supp.2d 337, 348 (D.N.J. 2000); also citing Jarvis v. A&M Records, 827 F.Supp. 282, 297 (D.N.J. 1993) (“[t]he right of publicity generally applies to situations where the plaintiff’s name, reputation or accomplishments are highly publicized and the defendant used that fact to his or her advantage”). Fundamentally, the right of publicity acknowledges the validity and legality of a person’s interest in his/her name or likeness in the nature of a property right. Restatement (Second) of Torts, § 652C comment a. The courts have further articulated this right, recognizing that “a celebrity has the right to capitalize on his persona, and the unauthorized use of that persona for commercial gain violates fundamental notions of fairness and deprives the celebrity of some economic value in his persona.” Hart, supra, at *5 (citing Prima, 78 F.Supp.2d at 349). The violation of an individual’s right of publicity and unauthorized use of his/her likeness – especially celebrities whose status often generates wealth – harms the individual by diluting the value of his/her name and depriving that individual from just compensation. Id.
The prima facie case for infringement of the right to publicity is, in essence, a two-fold requirement: validity and infringement. Validity relates to whether the individual has an enforceable “property” right in his likeness. Hart, 2010 WL 3786112 at *6. Infringement speaks to whether the defendant, without permission, used the likeness in such a way that plaintiff is identifiable and in a manner likely to cause damage to the commercial value of the individual. Id.
Over time, this right of publicity has evolved (some states have adopted statutes protecting rights of publicity) and the number of publicity rights disputes has increased. Athletes, in particular, are moving the chains. Ed O’Bannon, who starred on UCLA’s 1995 NCAA basketball title team, filed a class-action lawsuit against the National Collegiate Athletic Association (“NCAA”) and Collegiate Licensing Company (“CLC”) for the use of his and other players’ images and likenesses in video content, photos and other memorabilia. Sam Keller, a former quarterback at Arizona State and Nebraska, filed suit against Electronic Arts, Inc. (“EA Sports”) for replicating his likeness in its NCAA Football video games. NFL great Jim Brown sued EA Sports over the use of his likeness in the popular Madden NFL video games, and most recently, NBA legend Oscar Robertson has filed suit against the NCAA, CLC and EA Sports arguing that the defendants have attempted to control his likeness into perpetuity.
Ryan Hart is advancing the ball in New Jersey. On June 15, 2009, Hart filed a putative class action lawsuit, on behalf of himself and all others similarly situated, against EA Sports alleging, among other things, that EA Sports invaded his right of privacy by misappropriating his likeness for commercial purposes and violating his right of publicity. In his complaint, he claims EA, without his consent, used his likeness in its NCAA Football video game series for the years in which Hart was quarterback of the Rutgers University football team, and again in 2009, in which Hart claims a photograph of him appears in a montage of actual college football players.
According to Hart, the similarities between he and the “virtual” Rutgers quarterback in the video game are palpable, the commonality of the attributes unmistakable. For example, the virtual quarterback in the video game shares the same height and weight as Hart. Aside from those immutable traits, the virtual quarterback dons jersey number 13, wears a left wrist band and has a helmet visor, just as Hart did when he ran the Rutgers offense. Hart points out that the virtual quarterback, like Hart, hails from Florida. Hart also has alleged that EA, in the promotion of its video game, used actual video footage of him throwing a pass in Rutgers’ 2005 Insight Bowl game against Arizona State.
The NCAA, CLC and EA Sports have raised several defenses to these claims. After all, the doctrine has discernible standards. For example, in Hart’s case, EA Sports has argued that Hart’s likeness was not used for a commercial purpose. The use of a person’s likeness for non-commercial purposes, such as the dissemination of news or information, generally is not actionable. See Castro v. NYT Television, 370 N.J. Super. 282 (App. Div. 2004) (disallowing emergency room patients filmed for a reality TV show to recover for misappropriation of their likeness). Not every use of one’s image by a commercial publication is considered a commercial use.
EA Sports also has sought safe harbor under the First Amendment, arguing that the medium in which the alleged misappropriations have occurred – the video games – are creative, expressive works entitled to First Amendment protection. According to the court in Hart’s case, the applicability of this defense depends on whether the video game is considered commercial speech or an artistic work. Hart, supra, *10 (citing Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1018 (3d Cir. 2008). In these cases, the defendants also have pointed to the existence of various federal laws under which the claim may be preempted.
The plaintiffs, however, maintain that the misappropriation of their likeness is tantamount to stealing; they otherwise would be entitled to market and promote themselves and reap the financial benefits.
Many of these cases (including Hart’s) are pending, and it remains unclear how these disputes will resolve. Still, what is clear is that a right of publicity exists, and it gives an individual, especially a public figure or celebrity, the right to control the exploitation of his likeness and to prevent others from infringing upon that right for commercial benefit.