1. The Right of Publicity:
Using the Famous, Infamous,
and Regular Folks in Art
Presented by:
Keith Jaasma
Patterson & Sheridan, LLP
California  Texas  New Jersey  North Carolina

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3.  “We‟re not saying
President Obama
endorses
Weatherproof
apparel.”
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4.  “The White House has a longstanding
policy disapproving of the use of the
president‟s name and likeness for
commercial purposes.” 4

5.  SweetSasha and
Marvelous Malia
 PETA Van
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6. Keller v. EA Sports
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7. Bollea v. Post Foods
 http://www.youtube.com/watch?v=XFD7Rp3btI8
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8. Lohan v. E-Trade
 http://www.youtube.com/watch?v=lEXZ2hfD3bU
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10. What is the Right of Publicity?
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11. What is the Right of Publicity?
The right of an individual to control the use of
his or her name or image
in advertising or other commercial enterprises
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12. Zacchini v. Scripps-Howard Broadcasting Co. (1977)
 Zacchini sued TV station for violating his right of
publicity by broadcasting his entire 15-second
“Human Cannonball” act on the news
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13. Zacchini v. Scripps-Howard Broadcasting Co. (1977)
 TV station asserted First Amendment Defense
 Rejected by the U.S. Supreme Court
 “[T]he State‟s interest in permitting a „right of publicity‟
is in protecting the proprietary interest of the
individual in his act in part to encourage such
activity….[T]he State‟s interest is closely analogous to
the goals of patent and copyright law, focusing on the
right of the individual to reap the reward of his
endeavors….”
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14. Protectable Interests:
Beyond Names and Photographs
of Celebrities
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15. “Distinctive Voice”
Midler v. Ford Motor Company (9th Cir. 1988)
 Midler turned down Ford‟s offer to use
her recording of “Do You Want to
Dance” for commercial
 Ford hired backup singer to perform
the song and mimic Midler
 “[W]hen a distinctive voice of a
professional singer is widely known
and is deliberately imitated in order to
sell a product, the sellers have
appropriated what is not theirs and
have committed a tort in California.”
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16. “Distinctive Voice”
Waits v. Frito Lay(9th Cir. 1992)
 Song sung in the “style” of Tom
Waits
 Allowed punitive damages,
finding malice where Frito Lay
was aware of his opposition to
commercial endorsement and
damage to his artistic integrity.
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17. Nicknames
Hirsch v. S.C. Johnson & Sons (Wisc. 1974)
 Elroy “Crazylegs” Hirsch –
football star in the 1940s
and 50s.
 Could maintain claim
against S.C. Johnson for
use of “Crazylegs” on
shaving gel
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18. Catch-Phrases
Carson v. Here’s Johnny Portable Toilets (6th Cir. 1983)
“If the celebrity‟s identity is
commercially exploited, there
has been an invasion of his
right whether or not his „name
or likeness‟ is used. Carson‟s
identity may be exploited even if
his name John W. Carson, or
his picture is not used.”
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19. Tools of the Trade
Motschenbacher v. R.J. Reynolds (9th Cir. 1974)
 Winston ad used photo of
Motschenbacher‟s car, altering
number to “71” and adding a
spoiler
 Car had distinctive white
pinstripe and oval, instead of
circle, around number
 Court ruled that
Motschenbacher was
identifiable from the photo even
though his facial features were
not visible
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20. “Identity”
White v. Samsung (9th Cir. 1992)
 California has both statutory and
common law causes of action for
living individuals
 White could not maintain statutory
claim for misappropriation of
“likeness”
 Could maintain common law claim for
misappropriation of her “identity”
 Multiple Texas courts have followed to
help define scope of “likeness”
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21. “Identity”
Wendt v. Host International (9th Cir. 1997)
 Question for jury whether
robots in hotel bars were
the likeness or
appropriated the image of
Wendt and Ratzenberger
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22. The Right of Publicity in Texas
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23. Rights for the Living
Common Law Tort of Misappropriation of
Name or Likeness:
 The defendant appropriated the plaintiff‟s name
or likeness for the value associated with it, and
not in an incidental manner or for a newsworthy
purpose;
 The plaintiff can be identified from the
publication; and
 There was some advantage or benefit to the
defendant.
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24. Rights for the Deceased
Texas Property Code, Chapter 26
 Prohibits use of a deceased individual‟s name, voice,
signature, photograph, or likeness . . .
 “ . . . in any manner, including, in connection with
products, merchandise, or goods; or for the purpose of
advertising, selling, or soliciting the purchase of
products, merchandise, goods, or services.”
 Last for 50 years in Texas
 Lasts longer in other states
 Indiana – 100 years
 Tennessee – As long as it is used
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25. Rights for the Deceased
Texas Property Code, Chapter 26
 PERMITTED USES. (a) A person may use a deceased
individual's name, voice, signature, photograph, or
likeness in:
 (1) a play, book, film, radio program, or television
program;
 (2) a magazine or newspaper article;
 (3) material that is primarily of political or newsworthy
value;
 (4) single and original works of fine art;
 (5) an advertisement or commercial announcement
concerning a use under this subsection.
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26. When is art protected?
 Artistic expression?
Artistic
Expression?
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27. Winter v. D.C. Comics (Cal. 2003)
 The “Autumn Brothers”
depicted in Jonah Hex
comic book.
 “Transformative” depiction.
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28. Ali v. Playgirl (S.D.N.Y. 1978)
 Playgirl published drawing
of nude black man in boxing
ring that resembled Ali and
also referred to “the
Greatest”
 Drawing found to be his
“likeness”

29. Rights for the Deceased
Texas Property Code, Chapter 26
 PERMITTED USES. A media enterprise may use a deceased
individual's name, voice, signature, photograph, or likeness in
connection with (1) the coverage of news, (2) public affairs, (3) a
sporting event, or (4) a political campaign without consent.
 Any use other than the above by a media enterprise of a deceased
individual's name, voice, signature, photograph, or likeness shall
require consent if the material constituting the use is integrally and
directly connected with commercial sponsorship or paid advertising.
 No consent shall be required for the use of the deceased individual's
name, voice, signature, photograph, or likeness by a media
enterprise if the broadcast or article is not commercially sponsored
or does not contain paid advertising.
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30. Parody & 1st Amend. --Bush v. Viacom
 Bush appeared on 700 Club to
detail his weight loss using Pat
Robertson‟s Diet Shake
 Brief clip appeared on Daily Show
 Image not used for its “value”
because used for parody
 First Amendment defense likely
as well
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31. Documentaries -- Benavidez v. Anheuser Busch,
 Anheuser Busch produced
documentary about Hispanic war
heroes, including Roy Benavidez
 Only mention of Anheuser Busch was in
closing credits
 Video may have been shown at some
hospitality centers
 “Undoubtedly Anheuser Busch…may enjoy increased
goodwill in the Hispanic Community as a result of the
production and showing of „Heroes.‟ This incidental benefit,
however, does not rise to the level of commercial benefit
sufficient to support a claim for misappropriation.”
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32. Life Stories -- Matthews v. Wozencraft
 Former undercover narcotics officer
sued author and publisher of the book
“Rush” and producer of the movie for
fictionalized account of his life
 “The term „likeness‟ does not
include general incidents from a
person‟s life, especially when
fictionalized.”
 Claim probably also would have
failed because of exception for
biographies or on First Amendment or
Texas constitutional grounds
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33. Life Stories -- Whitehurst v. Showtime Networks
 Plaintiff owning portion of James
Byrd, Jr.‟s publicity rights sued
for use of Byrd‟s name and
actor‟s photo to promote sales of
DVD.
 Use of Byrd‟s name and actor‟s
image protected by first
amendment
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34. Art Good,
Advertising Bad
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35. Henley v. Dillard’s Dept. Stores (N.D. Tex. 1999)
 “This is Don.”
 “This is Don‟s henley.”
 “Because the use of the expression „Don‟s henley‟ is
so clearly recognizable as a likeness of Plaintiff, the
Court finds that no reasonable juror could conclude
that the phrase „Don‟s henley‟ does not clearly
identify the Plaintiff, Don Henley.”
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36. Elvis Presley Enterprises v. Caprese
(S.D. Tex. 1996)
 Use of “Velvet Elvis” as bar name was not right of
publicity violation but rather “represents an art form
reflective of an era that Elvis helped to shape.”
(Appeals court found that bar name was a trademark
law violation)
Use of photos of Elvis in advertisements was a
misappropriation
References to Graceland and “Elvis Has Left the
Building” were misappropriations because of their
unmistakable association with Elvis
The phrase “King of Dive Bars” and the inclusion of
peanut butter and banana sandwiches on the bar‟s
menu could not support a right of publicity claim. “To
trigger infringement the plaintiff must be clearly
identifiable from use of the item or phrase in
question.”
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37. O’Grady v. Twentieth Century Fox (E.D. Tex. 2003)
 Discovery showed Scott O‟Grady
documentary in conjunction with promotions
for “Behind Enemy Lines” linking the two.
 “In the New Twentieth Century Fox Feature Film,
Behind Enemy Lines, like Scott O‟Grady, Owen
Wilson‟s character, naval aviator Chris Burnett,
runs into some challenges once his plane is shot
down.”
 Question for jury whether O‟Grady‟s name
and likeness had been used for value
associated with them
 Fact that O‟Grady‟s story had once been
“newsworthy” was not enough to entitle
Discovery to summary judgment on
O‟Grady‟s claim.
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38. Plaintiff Need Not Be Widely Famous
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39. Moore v. Big Picture Co. (5th Cir. 1987)
 Big Picture used name of Moore, who worked for
rival media company, as part of pitch for its audio-
visual services to Kelly Air Force Base
Court rejected Big Picture‟s argument that Moore
had not shown that his name had been used for its
value
It was to Big Picture‟s “advantage to have a well-
known, highly qualified person listed on the
proposed staffing chart.”
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40. Topheavy Studios v. Doe
(Austin Ct. App. 2005)
 Underage plaintiff paid $20 in “prize
money” for exposing breasts for
answering questions incorrectly during
trivia contest at South Padre Island
 Images appeared in video game
and in promotion for video game
“Generally, an appropriation
becomes actionable when the name
or likeness is used „to advertise the
defendant‟s business or product, or for
some similar purpose.‟”
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41. Topheavy Studios v. Doe
(Austin Ct. App. 2005)
 Underage plaintiff paid $20 in “prize
money” for exposing breasts for
answering questions incorrectly during
trivia contest at South Padre Island
 Images appeared in video game
and in promotion for video game
“Generally, an appropriation
becomes actionable when the name
or likeness is used „to advertise the
defendant‟s business or product, or for
some similar purpose.‟”
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42. You Never Know Where Your Internet
Photos Might End Up
 Photo from Flickr used in
Australian cell phone ad urging
consumers to “Dump Your Pen
Friend”
 Girl in photo could not sue
Australian company in Texas
The photo of Alison Chang from Justin Ho-Wee
Wong's Flickr photo-sharing web page.
Photo by Justin Ho-Wee Wong.
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43. Copyright vs. Right of
Publicity
•The Nightcaps alleged that ZZ
Top‟s “Thunderbird” copied the
Nightcaps “Wine, Wine, Wine”
•Misappropriation claim
preempted by Copyright law
•For instance, the Nightcaps did
not allege that ZZ Top used their
name or likenesses to promote
ZZ Top‟s song.

44. Sovereign Immunity
Chavez v. Arte Publico
University of Houston entitled to
sovereign immunity
Jiminez v. Conley
Magazine
San Antonio entitled to sovereign
immunity.

45. Other Issues to Consider
 Copyright
 “I found it on the internet” and “I changed it” are not
defenses
 Trademark
 Has the individual registered their name or identity as
a trademark?
 Defamation
 Public figures vs. Private individuals
 Intentional Infliction of Emotional Distress
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46. Likely “Safe” Uses
Texas Property Code, Chapter 26
 PERMITTED USES. (a) A person may use a deceased
individual's name, voice, signature, photograph, or
likeness in:
 (1) a play, book, film, radio program, or television
program;
 (2) a magazine or newspaper article;
 (3) material that is primarily of political or newsworthy
value;
 (4) single and original works of fine art;
 (5) an advertisement or commercial announcement
concerning a use under this subsection.
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47. Keith Jaasma
Patterson & Sheridan, LLP
3040 Post Oak Blvd., Suite 1500
Houston, TX 77056-6582;
(713) 576-5062
kjaasma@pattersonsheridan.com
www.jaasma.com
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