Publicity rights of an individual can be confusing when compared to other intellectual property rights. Copyrights, trademarks, and patents are all governed by federal law, simply meaning they are national laws passed by the United States of America’s government. Wherever you are in the United States, the same law applies. However, as we all (hopefully) learned in third grade civics class, a variety of rights are reserved to each State in the union. This is called federalism. Currently, although many academics are pushing for a national law, publicity rights of an individual are decided by laws passed by each State. Many States in the union share common ideas of how to protect the commercial use of an individual’s name, imagine, or likeness, but many are wildly different. This poses a problem for individuals and their legal counsel, as issues of what law applies and where should I file suit against a purported misappropriater come up immediately. Here is a real life example.
A company named ToyWatch USA has recently been sued by actress Sandra Bullock, as ToyWatch is advertising a watch they sell as “the watch Sandra Bullock wore in The Blind Side.” ToyWatch additionally displays pictures of Bullock wearing the watch in their advertising. What is interesting about this lawsuit is Bullock is not bringing any copyright or trademark claims (such as false advertising) against ToyWatch, but is exclusively bringing suit against ToyWatch for a misappropriation of her name and likeness. Bullock claims her name and image will become over-saturated if companies are allowed free reign to use her name and likeness in connection with their products, simply because that product may have some relation to a film Bullock starred in. As for venue shopping, Bullock brought this lawsuit in California, universally known as one of the most liberal and pro-celebrity States in the nation for obvious reasons. ToyWatch, according to the complaint, is from Delaware. This is an important example as one thinks about the Internet, where even if one is located in one State, you can be dragged into Court in another state if you are “doing business” in the other State. Having something for sale on the Internet is all a potential litigant needs to potential drag a Defendant across state lines. Of course, there are other jurisdiction and venue rules that may apply, which is why if you think your publicity rights are being violated by another, to consult an intellectual property law attorney to discuss your options. But simply stated, potential litigants may be able to “venue shop” around for states with more stringent rights of publicity laws which could be a valuable weapon against those illegally using another’s name or likeness.
Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A