Right of Publicity: Frequently Asked Questions

219 common questions about right of publicity law, answered in plain English. Each answer links to the full guide or case analysis it comes from. Browse the Right of Publicity case-law archive for the underlying decisions. Educational only, not legal advice.

Is an AI deepfake a violation of the right of publicity?
It can be. The right of publicity protects the commercial value of your name, image, likeness, and — increasingly — your voice. An AI deepfake that uses your identity to sell, endorse, or trade on your persona without consent is a classic publicity violation, even if no genuine footage of you exists. Newer state 'digital replica' statutes make voice and AI-generated likenesses explicitly actionable, and some reach the tools that create them. Read more: AI Deepfakes and Your Right of Publicity ›
What is the ELVIS Act and what does it protect?
The ELVIS Act (Ensuring Likeness, Voice, and Image Security Act) is a Tennessee law effective July 1, 2024. It updated Tennessee's Personal Rights Protection Act to explicitly protect an individual's voice alongside name, photograph, and likeness, and to cover AI-generated simulations. Critically, it also creates liability for anyone who makes available a product or service whose primary purpose is producing an unauthorized digital replica of a person. Read more: AI Deepfakes and Your Right of Publicity ›
Can I get an AI deepfake of myself taken down?
Often yes. Most major platforms have policies against non-consensual synthetic media and impersonation, so a takedown request is usually the fastest first step. If the deepfake is commercial or defamatory, a cease-and-desist letter to the poster and platform adds legal weight. Where a state digital-replica statute applies, you may also sue for injunctive relief and damages. Preserve the URLs, screenshots, and timestamps before anything disappears. Read more: AI Deepfakes and Your Right of Publicity ›
Does the NO FAKES Act protect me from voice cloning yet?
Not yet — as of 2026 the NO FAKES Act is a proposed federal bill, not enacted law. If passed, it would create a nationwide, IP-style digital-replica right covering both voice and visual likeness, with a notice-and-takedown system for platforms similar to the DMCA. Until then, your protection comes from state right-of-publicity law and newer state digital-replica statutes, which vary significantly by jurisdiction. Read more: AI Deepfakes and Your Right of Publicity ›
Is AI voice cloning illegal?
It depends on how the clone is used and where. There is no single nationwide ban. The strongest tool in most cases is the right of publicity, a state-law right that controls commercial use of your name, voice, image, and likeness. Using a cloned voice or a deepfake to advertise, sell, endorse, or impersonate can violate that right, and several states now have AI-specific statutes such as Tennessee's ELVIS Act. Copyright usually does not help, because copyright protects specific recordings, not the sound of a voice itself. Whether a particular clone is unlawful is fact-specific, so ask an attorney licensed in your jurisdiction. Read more: AI Voice Cloning & Deepfakes: What Are Your Rights? ›
What can I do if someone made a deepfake of my voice or face?
Document everything first: save the file, URLs, screenshots, dates, and where it appeared. Identify whether the use is commercial or impersonating you, which strengthens a right-of-publicity or state-law claim, and check platform reporting and takedown tools. Many disputes resolve with a demand or takedown letter. Because deadlines and the free-speech analysis are nuanced, and AI laws vary by state, get tailored advice from an attorney licensed in your jurisdiction. Read more: AI Voice Cloning & Deepfakes: What Are Your Rights? ›
What is a college athlete NIL deal?
An NIL deal is a contract that pays a college athlete for the commercial use of their name, image, and likeness — endorsements, social media posts, autograph signings, camps, merchandise, or appearances. Since the NCAA's interim policy took effect July 1, 2021, college athletes across all three divisions can earn NIL money without losing eligibility. Deals come from brands, local businesses, and school-affiliated 'collectives,' and the athlete is paid as an independent contractor, not an employee. Read more: College Athlete NIL Deals: How They Work ›
Can colleges pay athletes directly in 2026?
Yes. After Judge Claudia Wilken granted final approval to the House v. NCAA settlement on June 6, 2025, Division I schools that opt in may pay athletes directly through revenue sharing starting July 1, 2025. The first-year cap is roughly $20.5 million per school and rises annually. This direct pay is separate from third-party NIL deals, which continue and now run through a Deloitte-operated clearinghouse called NIL Go. Read more: College Athlete NIL Deals: How They Work ›
Do college athletes pay taxes on NIL income?
Yes. NIL income is taxable self-employment income, not tax-free. Payers issue a Form 1099-NEC for $600 or more, and no taxes are withheld, so the athlete owes federal and state income tax plus 15.3% self-employment tax and usually must make quarterly estimated payments. NIL earnings can also affect financial-aid calculations and a family's tax situation, so many athletes set aside 30–40% for taxes. Read more: College Athlete NIL Deals: How They Work ›
What is an NIL collective?
A collective is an organization, usually funded by a school's boosters and fans, that pools money to arrange NIL deals for that school's athletes. Collectives became the main engine of college NIL from 2021 to 2024. Under the 2025 House settlement, collective deals of $600 or more must be submitted to the NIL Go clearinghouse to confirm they reflect fair market value and a valid business purpose, which curtails pure pay-for-play arrangements. Read more: College Athlete NIL Deals: How They Work ›
Do influencers own the rights to their own likeness?
Yes. Every creator holds a right of publicity — the right to control the commercial use of their name, image, voice, and likeness. In most states this is a statutory or common-law right, and in California it is codified at Civil Code section 3344. A brand can only use your likeness in advertising to the extent you grant a license, so the scope of your contract, not the mere existence of the deal, controls what they may do. Read more: Influencer & Creator Likeness Rights ›
Can a brand keep using my content after the campaign ends?
Only if your contract lets them. The license term, territory, and media are defined by the agreement. If it grants a limited term — say 90 days of paid usage — the brand must stop running your image in ads when that window closes, and continued use can be a breach plus a right-of-publicity violation. Watch for 'in perpetuity,' 'irrevocable,' and 'all media now known or later devised' language, which grants forever rights for a single flat fee. Read more: Influencer & Creator Likeness Rights ›
What is whitelisting in an influencer contract?
Whitelisting (and its close cousin 'allowlisting' or Spark Ads on TikTok) means you give the brand permission to run paid ads from your own social handle, or to use your content in their ad account. It dramatically expands reach and audience targeting, so it should be priced and time-limited separately from an organic post. Grant it for a defined term and defined spend, never open-ended, and confirm you keep approval over the ad creative. Read more: Influencer & Creator Likeness Rights ›
Do I still have to disclose a brand deal if I was not paid in cash?
Yes. Under the FTC's 2023 Endorsement Guides, any 'material connection' — free product, gifts, affiliate commissions, discounts, or family ties — must be disclosed clearly and conspicuously, not just paid partnerships. Use unambiguous terms like '#ad' or 'Paid partnership,' place the disclosure where viewers actually see it, and repeat it in video. Both the brand and the creator can face FTC liability for a missing or buried disclosure. Read more: Influencer & Creator Likeness Rights ›
Does California protect my name, image, and voice?
Yes. Civil Code section 3344 protects living people and section 3344.1 protects deceased personalities, and 2025 laws AB 1836 and AB 2602 added specific protections against unauthorized AI digital replicas of voice and likeness. Read more: Intellectual Property in California: A 2026 Guide for Founders & Creators ›
Can California college athletes make money from their name, image, and likeness?
Yes. California's Fair Pay to Play Act (SB 206, codified at Education Code section 67456) lets college athletes earn NIL compensation, and schools and athletic associations cannot punish them for it. Read more: Intellectual Property in California: A 2026 Guide for Founders & Creators ›
How do I protect a trade secret in California?
Identify the confidential information, keep it secret with reasonable safeguards like NDAs and access limits, and rely on the California Uniform Trade Secrets Act (Civil Code section 3426 and following) if it is misappropriated. Read more: Intellectual Property in California: A 2026 Guide for Founders & Creators ›
What does NIL mean in California?
NIL stands for name, image, and likeness. It refers to your legal ability to control and earn money from how your identity is used commercially, such as in endorsements, social posts, autographs, or appearances. In California, NIL rights are grounded in the state's right of publicity, and the Fair Pay to Play Act confirmed that college athletes can earn from their NIL without losing eligibility. For your specific situation, consult an attorney licensed in your jurisdiction. Read more: NIL Rights for Athletes and Creators in California, Explained ›
Can California college athletes get paid for endorsements?
Yes. Under California's Fair Pay to Play Act (SB 206, with provisions made operative by SB 26 on September 1, 2021), college athletes in California can earn compensation from their name, image, and likeness and hire representation without losing athletic eligibility. Separately, the 2025 House v. NCAA settlement opened the door for schools nationwide to share revenue directly with athletes. Rules vary by school, conference, and state, so confirm details with a licensed attorney. Read more: NIL Rights for Athletes and Creators in California, Explained ›
Do you have to be an athlete to have NIL rights?
No. NIL is just a popular label for the right of publicity, which every person has. Creators, influencers, models, musicians, and ordinary individuals can all license their name, image, and likeness. The athlete-focused laws got the most attention, but the underlying right protects everyone's identity from unauthorized commercial use. Read more: NIL Rights for Athletes and Creators in California, Explained ›
Is the NO FAKES Act a law yet?
No. As of mid-2026 the NO FAKES Act is still a proposed bill, not enacted law. The Senate version (S. 4591) advanced out of the Senate Judiciary Committee by a unanimous voice vote on June 18, 2026, but it still has to pass the full Senate and the House and be signed by the President before it becomes law. A companion House bill exists but has not yet cleared committee. If enacted, it would create a federal right to control AI 'digital replicas' of your voice and likeness, with a DMCA-style notice-and-takedown process and First Amendment carve-outs. Read more: The NO FAKES Act & State Digital-Replica Laws, Explained ›
What is a 'digital replica' under these laws?
A digital replica generally means a computer-generated, highly realistic electronic recreation of a real, identifiable person's voice or visual likeness, the kind of output a generative-AI 'deepfake' or voice clone produces. The exact wording varies by statute, but the common thread is that an ordinary person could recognize the replica as a specific individual. These laws target unauthorized replicas used commercially or deceptively, not loose impersonations or generic AI characters. Read more: The NO FAKES Act & State Digital-Replica Laws, Explained ›
What should I do now to protect my voice and likeness?
Even before any federal law passes, you already have tools: the state right of publicity, the enacted Tennessee ELVIS Act and California's AB 1836 and AB 2602, and contract terms. Add a clear digital-replica clause to any contract that involves recording or filming you, register your works where relevant, document your identity and any unauthorized uses, and send takedown notices to platforms. Because the rules differ by state and change quickly, confirm your options with an attorney licensed in your jurisdiction. Read more: The NO FAKES Act & State Digital-Replica Laws, Explained ›
Does the right of publicity survive after death?
It depends entirely on the state. Roughly half of U.S. states recognize a post-mortem right of publicity — either by statute or common law — that lets an estate control commercial use of a deceased person's name, image, and likeness. The other half either limit the right to living people or have never recognized a descendible right at all. Because there is no federal right of publicity, the answer turns on the law of the state where the person was legally domiciled at death. Read more: Post-Mortem Right of Publicity ›
How long does the right of publicity last after death?
The duration varies dramatically by state. California protects the right for 70 years after death under Civil Code section 3344.1, Indiana for 100 years, and New York for 40 years for deceased performers and personalities under its 2020 law. Tennessee's right lasts at least 10 years and can continue indefinitely as long as the identity is commercially exploited. States with no post-mortem statute provide zero protection once the person dies. Read more: Post-Mortem Right of Publicity ›
Which state's law controls a dead celebrity's publicity rights?
Courts apply the law of the state where the celebrity was domiciled at the time of death — not where the alleged infringement happened or where the estate is administered. That single fact can decide whether any post-mortem right exists at all. In the Marilyn Monroe litigation, courts held she was domiciled in New York at death, which then recognized no post-mortem right, so her estate could not stop unlicensed use of her image. Read more: Post-Mortem Right of Publicity ›
How do heirs license a deceased celebrity's name and image?
In states that recognize a descendible right, it passes by will or intestate succession like other property and can be assigned to an estate, LLC, or licensing agency. The rights holder then grants licenses for advertising, merchandise, films, and endorsements, and can sue infringers. Estates should register the claim where required (California and Indiana maintain registries) and address publicity rights explicitly in estate-planning documents. Read more: Post-Mortem Right of Publicity ›
Is there a federal right of publicity in the United States?
No. As of 2026 there is no general federal right of publicity, so protection is governed entirely by state law — roughly half the states by statute and the rest by common law. Federal law helps only around the edges: Section 43(a) of the Lanham Act can reach false endorsement, and the proposed NO FAKES Act would create a federal right against unauthorized AI voice and image replicas, but it is not yet law. Read more: Right of Publicity by State: A 2026 Map ›
Which states have the strongest right of publicity laws?
California (Civil Code 3344 and 3344.1), New York (Civil Rights Law 50, 51, and 50-f), Indiana, Tennessee, Ohio, Texas, Florida, Nevada, and Washington are generally considered the strongest. Indiana and Oklahoma protect the dead for 100 years; Tennessee's ELVIS Act now covers AI voice cloning. These states offer broad scope, clear damages, and long post-mortem terms, which is why celebrity estates often incorporate or litigate there. Read more: Right of Publicity by State: A 2026 Map ›
Does the right of publicity survive death?
It depends entirely on the state. Post-mortem rights exist in states like California (70 years), Indiana and Oklahoma (100 years), Nevada and Texas (50 years), Florida and New York (40 years), and Tennessee (10 years, extendable indefinitely with continued use). New York only added a post-mortem right in 2021. Many states recognize no post-mortem right at all, so the applicable law usually follows the deceased person's domicile at death. Read more: Right of Publicity by State: A 2026 Map ›
Which state's law applies if my image is used across state lines?
Courts usually apply the law of the state where the person is domiciled, especially for post-mortem claims, though the place of the wrongful use can also matter under choice-of-law rules. For a living person, publication in a strong-statute state like California can trigger that state's protections. Because the analysis is fact-specific and outcome-determinative, cross-border publicity disputes are an area where you should get counsel early. Read more: Right of Publicity by State: A 2026 Map ›
Can a company use my face in an ad without my permission in California?
Generally no. California's right of publicity, through both common law and Civil Code section 3344, prohibits using your name, voice, signature, photograph, or likeness for advertising or selling products without your prior consent. If a business does it anyway, you can sue, and section 3344 sets minimum statutory damages of $750 even if you cannot prove a dollar amount of harm. News, commentary, and other protected speech are treated differently. Read more: Can a Company Use Your Face or Voice in an Ad Without Asking? (California Law) ›
How much can I recover if my likeness was used without consent?
Under Civil Code section 3344, you can recover the greater of $750 in statutory damages or your actual damages, plus any profits the company made from the unauthorized use that are not already counted in your damages. The statute also allows punitive damages and, for the prevailing party, attorney's fees and costs. The right amount depends on the facts, so this is something to discuss with an attorney licensed in your jurisdiction. Read more: Can a Company Use Your Face or Voice in an Ad Without Asking? (California Law) ›
Do California's right of publicity protections apply after someone dies?
Yes. Civil Code section 3344.1 gives a deceased personality's heirs or estate control over the commercial use of their name, voice, signature, photograph, and likeness for 70 years after death. As of January 1, 2025, AB 1836 expanded this to cover unauthorized AI-generated digital replicas of deceased performers in audiovisual works and sound recordings. Read more: Can a Company Use Your Face or Voice in an Ad Without Asking? (California Law) ›
What is the right of publicity?
The right of publicity is your legal right to control the commercial use of your identity — your name, image, likeness, and often your voice. It stops others from using who you are to sell products, endorse brands, or generate revenue without permission. Unlike copyright or patents, it is almost entirely state law: roughly half the states protect it by statute, and many others recognize it through common law, so the rules vary widely by jurisdiction. Read more: Name, Image & Likeness: The Right of Publicity Guide ›
Is the right of publicity federal or state law?
It is state law. There is no general federal right of publicity statute. About half the states protect it by statute — California's Civil Code sections 3344 and 3344.1 are the best known — while others rely on common law, and some recognize both. The federal Lanham Act's false-endorsement provision can supplement it, and Congress is considering the NO FAKES Act to address AI replicas, but for now protection depends heavily on which state's law applies. Read more: Name, Image & Likeness: The Right of Publicity Guide ›
Do college athletes own their NIL rights?
Yes. Since the NCAA's interim policy took effect July 1, 2021 — following the Supreme Court's decision in NCAA v. Alston — college athletes can be paid for the use of their name, image, and likeness through endorsements, autographs, social media, camps, and appearances. Those NIL rights flow from each athlete's underlying state right of publicity. Deals are still governed by a patchwork of state laws and school and conference rules, so terms vary. Read more: Name, Image & Likeness: The Right of Publicity Guide ›
Can someone use my likeness in an AI deepfake?
Generally not for commercial or deceptive purposes without consent. Using a person's face or voice in an AI-generated deepfake to sell products, fake an endorsement, or impersonate them can violate the right of publicity and, in some states, new digital-replica laws like Tennessee's ELVIS Act and California's AB 2602 and AB 1836. The proposed federal NO FAKES Act would add nationwide protection. First Amendment defenses still apply to genuine parody, news, and commentary. Read more: Name, Image & Likeness: The Right of Publicity Guide ›
Do I need permission to use someone's photo in an advertisement?
Almost always, yes. Using a person's name, photo, or likeness to advertise or sell products triggers their right of publicity, and most states let them sue if you didn't get consent. In California, Civil Code § 3344 sets minimum damages of $750 plus the person's actual losses, your profits, and attorney's fees. The safe rule: get a signed model or talent release before a real, identifiable person appears in any commercial ad. Read more: Using Someone Else's Likeness in Advertising ›
Can I use a celebrity look-alike or sound-alike in my ad?
It's risky. Courts have repeatedly held that deliberately imitating a celebrity to sell products can violate their right of publicity even if you never use their actual name or image. In Midler v. Ford and Waits v. Frito-Lay, hiring sound-alikes to mimic distinctive voices lost. In White v. Samsung, a robot posed like Vanna White lost. If the point is to evoke a specific celebrity, expect liability. Read more: Using Someone Else's Likeness in Advertising ›
Are stock photos safe to use in advertising?
Not automatically. A stock license covers copyright — your right to use the image — but not the depicted person's right of publicity. Most stock sites split libraries into 'commercial' images (backed by a signed model release) and 'editorial' images (no release, news/illustrative use only). Using an editorial image in an ad, or implying a model endorses your product, can still trigger a publicity or false-endorsement claim despite a valid license. Read more: Using Someone Else's Likeness in Advertising ›
Can I feature a customer's testimonial or review in my marketing?
Only with consent. Even a genuine, unpaid customer has a right of publicity, so using their name, face, or words to promote your business without permission can create liability. Get a short written release for testimonials, and follow the FTC's endorsement rules — testimonials must be truthful, reflect real experiences, and disclose any material connection such as free products or payment. Read more: Using Someone Else's Likeness in Advertising ›
What is the right of publicity in simple terms?
The right of publicity is your legal right to control the commercial use of your own identity — your name, likeness, voice, and other recognizable attributes. It stops a company from using who you are to sell a product or service without your permission. It is a state-law right, so the details vary, but the core idea is consistent: your identity has commercial value, and you own that value. Read more: What Is the Right of Publicity? ›
Do you have to be famous to have a right of publicity?
No. In most states, everyone has a right of publicity, celebrity or not. Fame mainly affects damages — a well-known person's endorsement is worth more, so unauthorized use costs the defendant more. Ordinary people most often bring these claims when a business uses their photo in an ad, on packaging, or on a website without consent. Some older privacy-based statutes still protect the non-famous just as strongly. Read more: What Is the Right of Publicity? ›
Is the right of publicity the same as the right of privacy?
They are closely related but distinct. The right of publicity grew out of the privacy tort of 'appropriation,' but privacy protects dignity and emotional harm, while publicity protects the economic value of your identity. Privacy claims generally die with you; publicity rights are property-like and, in many states, survive death and pass to your heirs — 70 years after death in California under Civil Code section 3344.1. Read more: What Is the Right of Publicity? ›
Can you sue if a company uses your likeness without permission?
Often yes. To win, you generally must show the defendant used your identity, for a commercial or exploitative purpose, without consent, causing injury. Remedies include actual damages, the defendant's profits, and — under California Civil Code section 3344 — statutory minimum damages of $750 per use plus attorney's fees, and punitive damages for willful violations. Defendants may raise First Amendment or newsworthiness defenses. Read more: What Is the Right of Publicity? ›
What did the Oldsmobile commercial actually say?
The ad posed a trivia question about who had been voted the most outstanding player of the NCAA tournament three years in a row, displayed the answer "Lew Alcindor" with the years on screen, and then touted the Oldsmobile 88's place on a best-buy list three years running. It used Abdul-Jabbar's birth name and college record without his consent or payment. Read more: Lew Alcindor in an Oldsmobile Ad: Abdul-Jabbar and the Persistence of a Former Name ›
Why couldn't GM rely on the fact that Abdul-Jabbar had changed his name?
GM argued he had abandoned the name "Lew Alcindor," borrowing the trademark concept that disuse forfeits rights. The Ninth Circuit held that doctrine inapplicable to a person's birth name: a name one is born with and achieves fame under is not a commercial mark that lapses through non-use, so Abdul-Jabbar retained rights in it. Read more: Lew Alcindor in an Oldsmobile Ad: Abdul-Jabbar and the Persistence of a Former Name ›
Did Abdul-Jabbar win the case outright?
No. The Ninth Circuit reversed summary judgment and sent the case back for trial, holding that there were genuine factual disputes — particularly whether the ad implied his endorsement — that a jury had to resolve. The decision restored his claims rather than finally adjudicating them. Read more: Lew Alcindor in an Oldsmobile Ad: Abdul-Jabbar and the Persistence of a Former Name ›
Why didn't Shirley Booth have a right-of-publicity claim?
New York does not recognize a broad common-law right of publicity. Its statutory privacy right (Civil Rights Law §§ 50–51) protects only name, portrait, and picture — not voice — so she was left to argue unfair competition, defamation, and the Lanham Act, all of which the court rejected. Read more: Booth v. Colgate-Palmolive: New York's Refusal to Protect a Voice Alone ›
How can Booth and Lahr reach opposite results on similar facts?
They apply different states' law. Massachusetts in Lahr was willing to recognize unfair-competition and defamation theories for voice imitation; New York in Booth required an additional element and found none. There was no uniform national rule. Read more: Booth v. Colgate-Palmolive: New York's Refusal to Protect a Voice Alone ›
Would the result be different today?
Possibly, depending on the theory and the jurisdiction. Modern false-endorsement law and new statutes addressing digital replicas have shifted the landscape, but in New York the enumerated-categories structure of §§ 50–51 still limits pure voice claims, which is why recent reform efforts have focused on synthetic-media legislation rather than common-law expansion. Read more: Booth v. Colgate-Palmolive: New York's Refusal to Protect a Voice Alone ›
What was Cardi B sued over?
Kevin Brophy sued over the cover of Cardi B's 2016 mixtape Gangsta Bitch Music, Vol. 1, which used a Photoshopped image of his distinctive back tattoo grafted onto a different model in a sexually suggestive pose. He brought misappropriation of likeness and false-light invasion of privacy claims and sought roughly $5 million. Read more: A Tattoo on the Wrong Back: Brophy v. Almanzar and Cardi B's Mixtape Cover ›
How did the case turn out?
A California federal jury returned a defense verdict for Cardi B on October 21, 2022, finding no liability. The trial judge later denied Brophy's post-trial motions to overturn the verdict and ordered him to pay Cardi B's attorneys' fees and costs. Read more: A Tattoo on the Wrong Back: Brophy v. Almanzar and Cardi B's Mixtape Cover ›
Can your tattoo make you legally identifiable?
Potentially. Brophy argued his unique full-back tattoo identified him even though his face was not shown. The case shows the theory is viable enough to reach a jury, but the jury was not persuaded that the cover misappropriated his identity or placed him in a false light. Read more: A Tattoo on the Wrong Back: Brophy v. Almanzar and Cardi B's Mixtape Cover ›
Why did Jim Brown lose when Sam Keller won on similar facts?
Because they sued under different laws. Brown brought a Lanham Act false-endorsement claim, governed by the speech-protective Rogers test, and could not show EA explicitly misled consumers about his endorsement. Keller brought a right-of-publicity claim, governed by the transformative-use test, which asks whether EA added original expression rather than whether consumers were deceived. Read more: Brown v. Electronic Arts: Why the Rogers Test Sank Jim Brown's Likeness Claim the Same Day Keller Won ›
What does "explicitly misleads" mean under Rogers?
It requires an overt, affirmative representation that the person endorsed or is affiliated with the work — not merely the inference some consumers might draw from seeing a recognizable likeness. The Ninth Circuit held that even survey evidence of confusion cannot substitute for an explicit misstatement, because that would defeat the heightened First Amendment protection Rogers provides. Read more: Brown v. Electronic Arts: Why the Rogers Test Sank Jim Brown's Likeness Claim the Same Day Keller Won ›
Did Brown foreclose all of Jim Brown's claims against EA?
No. The decision addressed only the Lanham Act claim. The court expressly noted that a right-of-publicity claim would be governed by a different test, and the companion Keller ruling allowed precisely such a claim to proceed against the same franchise. Read more: Brown v. Electronic Arts: Why the Rogers Test Sank Jim Brown's Likeness Claim the Same Day Keller Won ›
Why did Princess Diana's estate lose the publicity claim?
The Ninth Circuit applied California Civil Code section 946, the default choice-of-law rule for personal property, which points to the law of the decedent's domicile. Princess Diana was domiciled in Great Britain, which does not recognize a post-mortem right of publicity, so California's statute did not apply and the claim failed. Read more: Diana's Domicile Decides: Cairns v. Franklin Mint and the Limits of Post-Mortem Publicity ›
What was the Lanham Act false-endorsement claim about?
The estate also argued Franklin Mint's Diana products falsely implied her endorsement. The court found the use was a permissible nominative fair use and that there was no likelihood of confusion about the source of the products, so that claim failed too. Read more: Diana's Domicile Decides: Cairns v. Franklin Mint and the Limits of Post-Mortem Publicity ›
Did the estate have to pay Franklin Mint?
Yes. After the estate's claims failed, the district court awarded Franklin Mint roughly $2.3 million in attorneys' fees, and the Ninth Circuit affirmed that award. The litigation became a cautionary tale about pursuing cross-border publicity claims. Read more: Diana's Domicile Decides: Cairns v. Franklin Mint and the Limits of Post-Mortem Publicity ›
Are these court decisions?
No. AB 2602 and AB 1836 are enacted California statutes, signed September 17, 2024 and effective January 1, 2025. They create new rights and rules; how courts apply them is still developing. Read more: California's Digital-Replica Statutes: AB 2602 and AB 1836 Split the Living from the Dead ›
What is the difference between the two laws?
AB 2602 (Labor Code § 927) governs contracts with living performers, voiding grants of digital-replica rights that lack a specific description and professional representation. AB 1836 amends the post-mortem right of publicity (Civil Code § 3344.1) to let estates sue over unauthorized AI replicas of deceased personalities. Read more: California's Digital-Replica Statutes: AB 2602 and AB 1836 Split the Living from the Dead ›
Do these laws stop filmmakers from depicting real people?
No. AB 1836 contains broad exceptions for news, commentary, criticism, satire, parody, and documentary or biographical works, so long as a realistic replica is not falsely presented as authentic. The laws target unauthorized commercial replicas, not expressive depiction generally. Read more: California's Digital-Replica Statutes: AB 2602 and AB 1836 Split the Living from the Dead ›
What did Cardtoons v. MLBPA decide?
The Tenth Circuit held that Cardtoons' parody baseball trading cards were protected expression under the First Amendment, and that this expressive value outweighed the Major League Baseball Players Association's right of publicity under Oklahoma law. The cards therefore did not infringe the players' publicity rights, even though they used recognizable caricatures and names. Read more: Cardtoons v. MLBPA: Parody Trading Cards Beat the Right of Publicity ›
How did the court weigh parody against the right of publicity?
The court applied an ad hoc balancing test rather than fitting the cards into a statutory exception. It found the economic and non-economic justifications for the right of publicity were weak as applied to celebrity parody, while the cards' value as social commentary and self-expression was high, so the First Amendment prevailed. Read more: Cardtoons v. MLBPA: Parody Trading Cards Beat the Right of Publicity ›
Were the cards commercial products?
Yes, the cards were sold for profit, but the court held that did not strip them of protection. Parody and social commentary do not lose First Amendment protection merely because they are sold, and the court treated the cards as an important form of entertainment and commentary rather than ordinary commercial speech. Read more: Cardtoons v. MLBPA: Parody Trading Cards Beat the Right of Publicity ›
Did the toilet company use Johnny Carson's name or picture?
No. It used neither his legal name nor his photograph nor his voice. It used the phrase "Here's Johnny," with which Ed McMahon introduced Carson on the Tonight Show, plus a punning slogan. The Sixth Circuit held that appropriating that phrase appropriated Carson's identity for purposes of the right of publicity. Read more: "Here's Johnny" on a Portable Toilet: Carson and the Catchphrase as Identity ›
Why did Carson win on publicity but lose his other claims?
The Lanham Act and unfair-competition theories require a likelihood of consumer confusion about sponsorship or endorsement, which the courts found absent for a portable-toilet business. The right of publicity is different: it protects the commercial value of identity regardless of whether consumers are confused, so it could succeed where the confusion-based claims could not. Read more: "Here's Johnny" on a Portable Toilet: Carson and the Catchphrase as Identity ›
Is Carson still cited today?
Yes. It remains a foundational authority for the rule that non-name, non-likeness identifiers — including catchphrases — can be the subject of misappropriation, and it is frequently paired with later identity-appropriation cases that wrestle with how far the principle should extend. Read more: "Here's Johnny" on a Portable Toilet: Carson and the Catchphrase as Identity ›
What did C.B.C. v. MLB Advanced Media hold?
The Eighth Circuit held that a fantasy baseball operator's use of major league players' names and statistical performance data was protected by the First Amendment, and that this protection supersedes the players' right of publicity under Missouri law. CBC could therefore run its games without a license. Read more: C.B.C. v. MLB Advanced Media: Fantasy Baseball and Free Speech ›
Why does the First Amendment protect the use of player statistics?
The court reasoned that player names and statistics are readily available in the public domain, that speech which entertains is protected just like speech that informs, and that baseball's statistics are of substantial public interest. Given how weak the players' publicity interests were by comparison, the First Amendment prevailed. Read more: C.B.C. v. MLB Advanced Media: Fantasy Baseball and Free Speech ›
What is the transformative-use test?
It asks whether a work using a celebrity's likeness adds significant creative elements—new expression, meaning, or message—so that the likeness becomes raw material for an original work, rather than the work being merely a conventional depiction sold for its likeness value. Read more: Raw Material or the Whole Point: Comedy III and the Birth of the Transformative-Use Test ›
Why did Saderup lose despite being a genuine artist?
The court held that skill devoted to faithfully reproducing a celebrity's image is not transformative. Because the drawings' value came primarily from the Stooges' fame rather than any new message Saderup added, the right of publicity prevailed. Read more: Raw Material or the Whole Point: Comedy III and the Birth of the Transformative-Use Test ›
Did the court say all celebrity art is unprotected?
No. It cited Andy Warhol's silkscreens as transformative and emphasized that parody, satire, caricature, fictionalization, and works commenting on celebrity remain protected. Only literal, conventional depictions sold for likeness value fail the test. Read more: Raw Material or the Whole Point: Comedy III and the Birth of the Transformative-Use Test ›
What was new in Davis compared to Keller?
The incidental-use defense. Keller had already resolved transformative use, public interest, and Rogers for EA's football games, and Davis applied those holdings to retired players. The fresh question was whether using thousands of unnamed legacy players made each individual use too trivial to be actionable. The court said no, holding the uses were central to EA's commercial purpose. Read more: Davis v. Electronic Arts: Retired NFL Players, the Incidental-Use Defense, and the Limits of First Amendment Cover ›
Why didn't the sheer number of players help EA?
The panel refused to let EA aggregate its way out of liability. Using many likenesses does not make any one use incidental; the comprehensive realism was precisely what made the product valuable. Volume was part of EA's commercial strategy, not a defense to it. Read more: Davis v. Electronic Arts: Retired NFL Players, the Incidental-Use Defense, and the Limits of First Amendment Cover ›
Did the players ultimately win?
The Ninth Circuit's ruling affirmed denial of EA's motion to strike, meaning the claims could proceed — it was not a final merits judgment. The Supreme Court denied certiorari, and the litigation resolved by settlement. The lasting significance lies in the doctrine: the decision confirmed that Keller's framework governs and that incidental use will not rescue a central commercial appropriation. Read more: Davis v. Electronic Arts: Retired NFL Players, the Incidental-Use Defense, and the Limits of First Amendment Cover ›
Did Olivia de Havilland lose entirely?
Yes. The Court of Appeal ordered her entire complaint stricken under the anti-SLAPP statute, the California Supreme Court denied review, and the U.S. Supreme Court denied certiorari, ending the case in FX's favor. Read more: No One Owns History: De Havilland v. FX and the First Amendment Defense to Right-of-Publicity Claims ›
Can a filmmaker depict a real, living person without permission?
Generally yes, in an expressive work such as a film, book, or docudrama. De Havilland holds that the First Amendment protects such portrayals and that the right of publicity does not give subjects a veto over how they are depicted. Read more: No One Owns History: De Havilland v. FX and the First Amendment Defense to Right-of-Publicity Claims ›
Who was Tony Twist and what did the comic do?
Anthony 'Tony' Twist was an NHL enforcer known for fighting. The comic book Spawn introduced a Mafia-don villain named 'Antonio Tony Twist Twistelli,' and creator Todd McFarlane acknowledged the character was named after the hockey player. Twist sued for misappropriation of his name. Read more: A Hockey Enforcer, a Comic-Book Villain: Doe v. TCI Cablevision and the Predominant Purpose Test ›
What is the predominant purpose test?
Adopted by the Missouri Supreme Court in this case, it asks whether a work that uses someone's identity does so predominantly to exploit the commercial value of that identity, or predominantly to make an expressive comment. If commercial exploitation predominates, the right of publicity prevails over the First Amendment defense. Read more: A Hockey Enforcer, a Comic-Book Villain: Doe v. TCI Cablevision and the Predominant Purpose Test ›
Did Tony Twist win damages in this decision?
Not in this ruling. The Missouri Supreme Court held Twist had made a submissible right-of-publicity case and rejected the First Amendment defense, but it found the jury instructions defective and ordered a new trial. Twist later prevailed on retrial and obtained a substantial judgment. Read more: A Hockey Enforcer, a Comic-Book Villain: Doe v. TCI Cablevision and the Predominant Purpose Test ›
Did the players win the right to control their game footage?
No. The Eighth Circuit affirmed summary judgment for the NFL, holding that the Copyright Act preempts the players' state right-of-publicity claims because the films are expressive works that fall within copyright's subject matter, and the rights asserted were equivalent to copyright rights. Read more: When Highlight Films Trump Publicity Rights: Dryer v. NFL and Copyright Preemption ›
Why weren't the films treated as advertisements?
The court applied a three-factor test and concluded the films were not commercial speech: they were documentary-style productions about historic games rather than ads for a product. As expressive speech, they could not be controlled through publicity claims that copyright preempts. Read more: When Highlight Films Trump Publicity Rights: Dryer v. NFL and Copyright Preemption ›
Does this mean athletes never have publicity rights in footage?
No. The holding is about productions that are expressive works incorporating game footage the league owns. Using a player's identity in a true advertisement or endorsement, or outside the scope of a copyrighted work, can still raise viable right-of-publicity and false-endorsement claims. Read more: When Highlight Films Trump Publicity Rights: Dryer v. NFL and Copyright Preemption ›
Does this case mean a signed model release is worthless?
No. It means a release only protects the parties to it and only for the uses it actually covers. A release a model signs with her agency does not give an unrelated business consent to use her image, and a transfer of rights in the photograph is not the same as consent to advertise with her likeness. Read more: A Release Is Not a License to All: Electra v. 59 Murray Enterprises and the Models Whose Images Sold the Nightclub ›
Why did the models win on state law but lose on the Lanham Act?
New York Civil Rights Law §§ 50-51 protects anyone against unauthorized commercial use of their likeness, regardless of fame. The Lanham Act false-endorsement claim requires consumer confusion about endorsement, which in turn requires that the public recognize the plaintiff. Most of the models could not show that "public prominence," so the federal claim failed while the state claim survived. Read more: A Release Is Not a License to All: Electra v. 59 Murray Enterprises and the Models Whose Images Sold the Nightclub ›
How does this apply to influencers and brands today?
Directly. Reposting an influencer's or model's photo to promote a business is the modern equivalent of the clubs' conduct. Under Electra, the existence of a license somewhere in the image's history does not authorize a particular brand's use, and even a non-famous creator can bring a state right-of-publicity claim that a Lanham Act claim could not support. Read more: A Release Is Not a License to All: Electra v. 59 Murray Enterprises and the Models Whose Images Sold the Nightclub ›
Did the court shut down the "Big El Show"?
No. It granted the estate a preliminary injunction in part — reaching the confusing "BIG EL SHOW" mark and the use of Presley's likeness on records, pendants, and promotional materials — but declined, on that record, to enjoin the live stage performance itself. Read more: Estate of Presley v. Russen: Where an Estate's Publicity License Stops and a Tribute Show Begins ›
Why could the estate stop the merchandise but not the performance?
Merchandise bearing Presley's likeness is commercial appropriation at the core of the right of publicity, with little expressive content. A live tribute performance carries its own expressive value and First Amendment weight, and the court found insufficient proof of irreparable commercial harm from the show itself at the preliminary stage. Read more: Estate of Presley v. Russen: Where an Estate's Publicity License Stops and a Tribute Show Begins ›
Did the court recognize a right that survived Presley's death?
Yes. The court held that Presley had a property right in his name and likeness that descended to his estate at death, giving the estate standing to enforce it. Read more: Estate of Presley v. Russen: Where an Estate's Publicity License Stops and a Tribute Show Begins ›
Did Tiger Woods sue the artist himself?
The suit was brought by ETW Corporation, the entity that manages Tiger Woods's intellectual property and licensing, against Jireh Publishing, which marketed artist Rick Rush's print. The Sixth Circuit ruled for Jireh on both the Lanham Act and Ohio right-of-publicity claims. Read more: When a Painting Beats a Trademark: ETW Corp. v. Jireh Publishing and Tiger Woods's Image ›
What test did the court use to protect the painting?
It borrowed the transformative-use test from the California Supreme Court's Comedy III decision, asking whether the work adds significant creative elements beyond a literal depiction of the celebrity. Because Rush's collage commented on a historic sporting event, it had substantial transformative elements and received full First Amendment protection. Read more: When a Painting Beats a Trademark: ETW Corp. v. Jireh Publishing and Tiger Woods's Image ›
Does this mean anyone can sell art using a celebrity's image?
No. The decision protects expressive, transformative works, especially those commenting on newsworthy events. Merely commercial uses, literal reproductions on ordinary merchandise, or works that confuse consumers about endorsement can still violate trademark or publicity rights. Read more: When a Painting Beats a Trademark: ETW Corp. v. Jireh Publishing and Tiger Woods's Image ›
Does the right of publicity survive a person's death?
It depends on the state. Roughly two dozen states recognize a descendible post-mortem right by statute or common law; others recognize none. Washington's statute, at issue in Experience Hendrix, expressly provides that the right does not expire at death and lasts up to seventy-five years for commercially valuable "personalities." Read more: Are You Experienced, After Death? The Ninth Circuit, Jimi Hendrix, and the Post-Mortem Right of Publicity ›
Why did Hendrix's New York domicile matter?
Under the traditional rule, the law of the decedent's domicile at death governs whether a right of publicity is descendible. New York recognized no post-mortem right in 1970, so the defendants argued the Hendrix estate had inherited nothing. The Ninth Circuit allowed Washington's law to apply instead — but only because the infringing sales occurred in Washington. Read more: Are You Experienced, After Death? The Ninth Circuit, Jimi Hendrix, and the Post-Mortem Right of Publicity ›
What does the ELVIS Act add for deceased celebrities?
Tennessee's 2024 ELVIS Act expanded the state's descendible publicity right to cover voice and AI-generated "simulations" of a person's voice or likeness, and reached technology distributors whose tools are primarily designed to produce unauthorized replicas — protections that extend to deceased Tennesseans. Read more: Are You Experienced, After Death? The Ninth Circuit, Jimi Hendrix, and the Post-Mortem Right of Publicity ›
Did Factors ultimately own the right to license Elvis Presley's image?
On the 1981 decision, no — the Second Circuit held that, under its reading of Tennessee law at the time, Boxcar had no descendible right to convey to Factors, so the license was unenforceable as to the claims at issue. Tennessee later recognized a descendible statutory right, and Presley's estate built a major licensing business, but that came after and apart from the Factors holdings. Read more: Factors Etc. v. Pro Arts: When an Exclusive Elvis License Outlived the Right It Licensed ›
Why did the same court reach opposite results three years apart?
The descendibility of the right was a question of Tennessee law that no Tennessee court had settled. After the 1978 affirmance, the Sixth Circuit (which covers Tennessee) read Tennessee law to deny a descendible right. In 1981 the Second Circuit deferred to that reading and reversed itself. Read more: Factors Etc. v. Pro Arts: When an Exclusive Elvis License Outlived the Right It Licensed ›
What made the "IN MEMORY" poster unprotected by the First Amendment?
The 1978 court treated the poster as merchandise that exploited Presley's identity, not as news coverage or commentary on a newsworthy event. The memorial caption did not transform a commercial product into protected speech. Read more: Factors Etc. v. Pro Arts: When an Exclusive Elvis License Outlived the Right It Licensed ›
Gravano's life story was clearly used — why did she lose?
Because New York Civil Rights Law §§ 50–51 protect only a person's name, portrait, picture, or voice — not their life story. The character did not use Gravano's name or voice, and the court found the avatar was not recognizable as her, so the borrowed biography alone could not support a claim. Read more: A Borrowed Life Is Not a Borrowed Face: Gravano v. Take-Two ›
Is this different from the Lohan decision?
It is the companion case, decided the same day under the same rule. Lohan turned on a character built from a lifestyle and look; Gravano turned on a character built from a detailed biography. Both failed on recognizability, but Gravano more sharply establishes that biography is not a protected attribute. Read more: A Borrowed Life Is Not a Borrowed Face: Gravano v. Take-Two ›
Would using Gravano's actual name have mattered?
Potentially. The statute separately protects "name," and the game used the invented name "Antonia Bottino." Pairing a real name with the biography would have raised a different question the court did not decide. Read more: A Borrowed Life Is Not a Borrowed Face: Gravano v. Take-Two ›
What did Guglielmi actually hold?
That the right of publicity is personal and not descendible, so Valentino's nephew could not inherit and enforce it. The complaint was dismissed on the authority of the companion case, Lugosi v. Universal Pictures. Read more: Valentino's Ghost and the First Amendment: Guglielmi's Concurrence That Outlived the Holding ›
Why is the concurrence more famous than the holding?
Because California soon created a descendible post-mortem right by statute, superseding the holding. The pressing question became how that right interacts with free speech, and Chief Justice Bird's concurrence had already laid out the answer: the First Amendment protects fictionalized portrayals of real people. Read more: Valentino's Ghost and the First Amendment: Guglielmi's Concurrence That Outlived the Holding ›
Can a film dramatize a deceased celebrity's life without permission?
Generally yes. Under the reasoning of Bird's concurrence and the expressive-work exemptions in California's statute, fictionalized biographies and dramatizations are protected speech, and publicity rights do not bar them. Read more: Valentino's Ghost and the First Amendment: Guglielmi's Concurrence That Outlived the Holding ›
What did Haelan v. Topps actually decide?
It held that a person has a 'right of publicity' in the commercial use of their photograph or likeness that is distinct from the right of privacy, and that this right can be exclusively granted to another party. An exclusive grantee may sue a competitor who knowingly uses the same person's image during the grant. Read more: The Birth of a Right: Haelan Laboratories v. Topps and the Invention of the Right of Publicity ›
Why is the case so important if it is just a Second Circuit decision?
Judge Jerome Frank coined the very phrase 'right of publicity' in this opinion. Courts and legislatures across the country later adopted the concept, and it became the foundation of modern publicity law, now recognized by statute or common law in most states. Read more: The Birth of a Right: Haelan Laboratories v. Topps and the Invention of the Right of Publicity ›
How is the right of publicity different from the right of privacy?
The right of privacy protects against emotional injury from unwanted exposure and is generally personal and non-transferable. The right of publicity protects the commercial value of identity, is treated as a property-like interest, and can be licensed or assigned, which is the distinction Haelan drew. Read more: The Birth of a Right: Haelan Laboratories v. Topps and the Invention of the Right of Publicity ›
Did Hart have to prove that consumers thought he endorsed the game?
No. The right of publicity protects against unconsented commercial use of identity itself, independent of any consumer confusion about sponsorship or endorsement. That is what distinguishes it from a false-endorsement claim under the Lanham Act, and it is why Hart could prevail without showing that anyone believed he had authorized NCAA Football. Read more: Hart v. Electronic Arts: The Transformative-Use Test and an Athlete's Likeness in a Video Game ›
What exactly is the transformative-use test?
Borrowed from Comedy III Productions v. Gary Saderup and the fair-use tradition, it asks whether the celebrity's likeness is merely raw material that the defendant has synthesized into a new, primarily original expression, or whether the likeness is the very substance of the work. If the depiction is essentially a literal, unaltered reproduction trading on the person's recognizability, it fails the test and the First Amendment provides no defense. Read more: Hart v. Electronic Arts: The Transformative-Use Test and an Athlete's Likeness in a Video Game ›
Is Hart binding nationwide?
No. It is binding precedent only in the Third Circuit. Its influence, however, is amplified by the Ninth Circuit's contemporaneous Keller decision reaching the same result on materially identical facts. Together they are the most frequently cited authorities on likeness rights in video games, but other circuits and state courts remain free to adopt different frameworks. Read more: Hart v. Electronic Arts: The Transformative-Use Test and an Athlete's Likeness in a Video Game ›
Did the court say Einstein never had a right of publicity?
No. It assumed New Jersey recognizes a descendible, post-mortem right of publicity. The problem was duration: the court held that right lasts no more than 50 years after death, so it had expired in 2005, before General Motors ran the 2010 advertisement. Read more: Einstein's Image, Fifty Years On: Hebrew University v. General Motors and the Limits of Post-Mortem Publicity ›
Why was New Jersey law applied to a case in a California court?
Einstein was domiciled in New Jersey when he died in 1955, having lived and worked in Princeton. Under choice-of-law principles, the law of the decedent's domicile at death generally governs the existence and duration of a post-mortem right of publicity, so New Jersey law controlled even though the suit was filed in the Central District of California. Read more: Einstein's Image, Fifty Years On: Hebrew University v. General Motors and the Limits of Post-Mortem Publicity ›
Does every state limit post-mortem publicity to 50 years?
No. Durations vary widely by statute. California protects the right for 70 years after death, Indiana for 100 years, and some states recognize no post-mortem right at all. The 50-year figure was the court's prediction of New Jersey common law, not a national rule. Read more: Einstein's Image, Fifty Years On: Hebrew University v. General Motors and the Limits of Post-Mortem Publicity ›
Does Hepp mean Facebook is liable for the ad?
No. The court held only that Section 230 does not immunize Facebook from Hepp's state right-of-publicity claim. Whether Facebook is actually liable under Pennsylvania law was sent back to the district court for further proceedings. Read more: The Intellectual Property Door in Section 230: Hepp v. Facebook ›
Why is the right of publicity treated as "intellectual property" here?
Because Section 230(e)(2) preserves "any law pertaining to intellectual property," and the Third Circuit concluded — based on the established meaning of the term and the right's economic logic — that the right of publicity protects a cultivated commercial asset much like copyright, patent, and trademark do. Read more: The Intellectual Property Door in Section 230: Hepp v. Facebook ›
How does this differ from the Ninth Circuit's rule?
The Ninth Circuit, in Perfect 10 v. CCBill, read § 230(e)(2) to cover only federal intellectual property, immunizing platforms from state IP claims. Hepp rejected that limit, holding the exception reaches state law too — creating a direct circuit split. Read more: The Intellectual Property Door in Section 230: Hepp v. Facebook ›
Did Hoffman lose because magazines can do whatever they want with celebrity photos?
No. He lost because this specific altered image appeared inside a protected editorial feature, making it noncommercial speech. That triggered the actual-malice standard, which he could not meet. A straightforward advertisement using his likeness to sell a product would have been analyzed very differently and would likely have been actionable. Read more: When the Magazine Wins: Hoffman v. Capital Cities/ABC and the First Amendment Limit on the Right of Publicity ›
What is the difference between commercial and noncommercial speech here?
Commercial speech does little more than propose a commercial transaction and receives reduced First Amendment protection, so a right-of-publicity claim can often prevail. Noncommercial (editorial or artistic) speech receives full protection, and a public-figure plaintiff must prove actual malice. The Ninth Circuit classified the "Grand Illusions" feature as the latter. Read more: When the Magazine Wins: Hoffman v. Capital Cities/ABC and the First Amendment Limit on the Right of Publicity ›
Does Hoffman override California Civil Code § 3344?
It does not erase the statute, but it limits it. Section 3344 and the common law right of publicity remain enforceable against commercial uses, yet both must yield to the First Amendment when the contested use is genuinely expressive. Hoffman is the constitutional ceiling, not a repeal of the statute. Read more: When the Magazine Wins: Hoffman v. Capital Cities/ABC and the First Amendment Limit on the Right of Publicity ›
Is House v. NCAA an intellectual property case or an antitrust case?
Both. The legal claims sound in antitrust — that NCAA rules unlawfully restrained the market for athlete compensation — but the asset being restrained is the athletes' right of publicity in their name, image, and likeness. The settlement effectively prices and licenses a publicity interest through an antitrust remedy. Read more: House v. NCAA: The Settlement That Made College Athletes Paid Licensors ›
Does the settlement make college athletes employees?
No. The settlement was deliberately structured to authorize direct payments without resolving employment status. Whether athletes are employees remains contested in separate proceedings before the NLRB and in other litigation, and a contrary ruling could destabilize the settlement's capped framework. Read more: House v. NCAA: The Settlement That Made College Athletes Paid Licensors ›
What stops a school from paying an athlete unlimited NIL money?
Two mechanisms: a per-school revenue-share cap (starting near $20.5 million in 2025-26 and escalating annually) on direct payments, and the NIL Go clearinghouse, which reviews larger third-party deals for fair-market value to prevent collectives from disguising recruiting inducements as endorsements. Read more: House v. NCAA: The Settlement That Made College Athletes Paid Licensors ›
Did the court rule that college athletes are employees?
No. It held that they are not categorically barred from being employees and remanded for the district court to apply a new economic-realities test to the facts. Whether any plaintiffs ultimately qualify remains undecided. Read more: Johnson v. NCAA: Can a College Athlete Be an Employee? ›
How is this different from NIL deals?
NIL compensation comes from third parties or collectives for the use of an athlete's name, image, and likeness. Johnson concerns wages owed by the school or the NCAA for the labor of playing the sport — an employment relationship, not a publicity license. Read more: Johnson v. NCAA: Can a College Athlete Be an Employee? ›
What test will the lower court apply on remand?
An economic-realities test grounded in common-law agency: whether athletes perform services primarily for the school's benefit, under its control, in exchange for compensation or in-kind benefits. The court expressly rejected the Glatt "primary beneficiary" intern test. Read more: Johnson v. NCAA: Can a College Athlete Be an Employee? ›
What is the difference between commercial and noncommercial speech?
Commercial speech proposes a commercial transaction or otherwise promotes a business's products or brand, and receives reduced First Amendment protection, making it subject to trademark and right-of-publicity law. Noncommercial speech — political, artistic, journalistic, or congratulatory expression — receives full protection. The distinction determines whether an unauthorized use of a person's identity can be actionable. Read more: Jordan v. Jewel Food Stores: When a Congratulatory Ad Is Commercial Speech ›
Why did the Seventh Circuit find Jewel's ad commercial?
Although the ad congratulated Jordan rather than hawking groceries, the court found it had an unmistakable commercial function: promoting the Jewel-Osco brand and building goodwill among consumers. An ad is no less commercial because it promotes brand awareness rather than proposing a transaction in a specific product. Read more: Jordan v. Jewel Food Stores: When a Congratulatory Ad Is Commercial Speech ›
Did Michael Jordan win the case?
Not outright in this decision. The Seventh Circuit reversed the summary judgment for Jewel and remanded so Jordan's Lanham Act, Illinois Right of Publicity Act, and related claims could proceed on the merits. Jordan later prevailed at trial in the district court, but that was a separate proceeding. Read more: Jordan v. Jewel Food Stores: When a Congratulatory Ad Is Commercial Speech ›
How is Keller different from Hart?
They are companion cases on nearly identical facts decided within two months of each other. Hart arose in the Third Circuit under New Jersey law; Keller arose in the Ninth Circuit under California law and reached the court through an anti-SLAPP motion. Both adopted the Comedy III transformative-use test and both held that EA's NCAA Football depictions were not transformative. Their agreement is what gave the rule its national force. Read more: Keller v. Electronic Arts: The Ninth Circuit Adopts the Transformative-Use Test for College Athletes' Likenesses ›
Why didn't EA win under Rogers v. Grimaldi?
The Keller majority held that Rogers, a trademark test focused on consumer confusion about a work's source, does not fit a right-of-publicity claim, whose gravamen is the appropriation of identity rather than deception about endorsement. The same panel did apply Rogers the same day in Brown — because Jim Brown sued under the Lanham Act, where confusion is the operative harm. Read more: Keller v. Electronic Arts: The Ninth Circuit Adopts the Transformative-Use Test for College Athletes' Likenesses ›
Did the names matter, given that EA omitted them?
No. The court treated likeness as a composite of recognizable attributes — number, position, physique, team, home state, statistics — not as a function of the player's name. Stripping the name while preserving the recognizable whole did not defeat the claim. Read more: Keller v. Electronic Arts: The Ninth Circuit Adopts the Transformative-Use Test for College Athletes' Likenesses ›
Can the owner of a photograph still be sued under the right of publicity?
Yes, when the issue is the depicted person's identity rather than the photograph as a creative work. Copyright ownership is not the same as the subject's consent to commercial use of her likeness. In KNB, the publicity claims were even held by assignment from the models, separate from the photo copyrights. Read more: A Face Is Not a Photograph: KNB Enterprises v. Matthews and Why § 3344 Survives Copyright Preemption ›
Does KNB mean every claim involving a copyrighted image escapes preemption?
No. KNB protects claims aimed at unauthorized commercial use of identity. If a publicity claim is really an effort to control reproduction or distribution of the copyrighted work itself, it can look equivalent to the copyright owner's rights and face preemption. The decisive question is what the plaintiff is actually trying to control. Read more: A Face Is Not a Photograph: KNB Enterprises v. Matthews and Why § 3344 Survives Copyright Preemption ›
Did Bert Lahr ultimately win damages?
The First Circuit did not award anything; it reversed a dismissal, meaning the case could proceed past the pleading stage. The opinion establishes that the claims were legally sufficient, not that the defendant was ultimately liable. Read more: Lahr v. Adell Chemical Co.: The Sound-Alike Case That Predated Midler by a Generation ›
How is this different from Midler v. Ford?
Midler rested on California's right of publicity and framed the injury as appropriation of identity. Lahr predated that tort and used unfair competition and defamation instead. The cases share a premise but apply different legal frameworks, and they arise under different states' law. Read more: Lahr v. Adell Chemical Co.: The Sound-Alike Case That Predated Midler by a Generation ›
What law protects against AI voice cloning, then?
Primarily the state-law right of publicity (in New York, Civil Rights Law §§ 50–51, which covers voice), along with contract and consumer-protection law. Those claims were allowed to proceed. Read more: Lehrman v. Lovo: Why the Right of Publicity — Not Copyright — Governs AI Voice Cloning ›
Is the case over?
No. It was a ruling on a motion to dismiss; the surviving claims continue, and the plaintiffs filed an amended complaint in July 2025. The litigation is ongoing. Read more: Lehrman v. Lovo: Why the Right of Publicity — Not Copyright — Governs AI Voice Cloning ›
Did Lohan lose because video-game characters can never be portraits?
No — the opposite. The court held that an avatar can be a "portrait" under §§ 50–51. Lohan lost because the specific character was not recognizable as her and was a generic, satirical depiction. Read more: When the Avatar Is You: Lohan v. Take-Two and the Recognizability Line ›
Does this decision recognize a broad right of publicity in New York?
No. New York has no common-law right of publicity; it has only the statutory privacy/publicity right in Civil Rights Law §§ 50–51, which reaches enumerated attributes used for advertising or trade. Lohan applies that narrow statute, it does not expand it into a general identity right. Read more: When the Avatar Is You: Lohan v. Take-Two and the Recognizability Line ›
Could a more detailed character have won?
Possibly. The court stressed that the avatar lacked "particular identifying physical characteristics." A depiction tied to a plaintiff's specific, recognizable features — used in trade and not as generalized satire — could clear the recognizability threshold the court applied. Read more: When the Avatar Is You: Lohan v. Take-Two and the Recognizability Line ›
Did the Lugosi family ultimately lose?
Yes. The Supreme Court agreed with the Court of Appeal that Universal, not the heirs, prevailed, holding that any right to exploit Lugosi's likeness was personal and did not survive his death. The family did not recover under the common law. Read more: Dracula Dies With the Actor: Lugosi v. Universal and the Birth of the Descendibility Debate ›
Is the right of publicity descendible in California today?
Yes—but by statute, not under the common-law rule of Lugosi. Civil Code section 3344.1 creates a descendible, transferable post-mortem right in a deceased personality's name, voice, signature, photograph, and likeness for a fixed term after death. Read more: Dracula Dies With the Actor: Lugosi v. Universal and the Birth of the Descendibility Debate ›
Why is Lugosi still important if a statute overturned it?
Because it frames the foundational debate. The majority's privacy-based, personal-only theory and Chief Justice Bird's property-based, descendible theory define the two poles between which every jurisdiction has chosen, and the dissent's view is the one that ultimately prevailed. Read more: Dracula Dies With the Actor: Lugosi v. Universal and the Birth of the Descendibility Debate ›
Did a court rule that AI impersonation violates the right of publicity?
No. The case ended in a stipulated consent judgment, meaning the parties agreed to the outcome and the court entered it. There was no contested merits ruling or precedent on whether an AI replica violates publicity rights, only a negotiated permanent injunction. Read more: Resurrecting a Comedian by Algorithm: Main Sequence v. Dudesy and the George Carlin AI Special ›
What did the settlement actually require?
The defendants agreed to a permanent injunction barring them from uploading, posting, or broadcasting the special again on any platform they control, and from using George Carlin's image, voice, or likeness in any content going forward. They were also required to take the video down. Read more: Resurrecting a Comedian by Algorithm: Main Sequence v. Dudesy and the George Carlin AI Special ›
Why did the athletes lose when a likeness isn't copyrightable?
The Ninth Circuit accepted that a face is not copyrightable, but held that the players were really trying to control distribution of the copyrighted photographs—licensing downloads of the images. That interest is equivalent to the copyright owner's exclusive rights, so the claims were preempted despite the likeness principle. Read more: Licensing the Image, Not the Athlete: Maloney v. T3Media and Copyright Preemption of the Right of Publicity ›
When is a right-of-publicity claim NOT preempted under Maloney?
When the defendant uses the likeness on merchandise or in advertising—exploiting the person's identity to sell a separate product or service—rather than distributing the copyrighted work itself. There, the claim protects identity, not the artwork, and survives preemption. Read more: Licensing the Image, Not the Athlete: Maloney v. T3Media and Copyright Preemption of the Right of Publicity ›
How does Maloney fit with KNB Enterprises v. Matthews?
Both accept that a human likeness is not copyrightable. KNB found § 3344 claims not preempted where the defendant commercially exploited the models' identities. Maloney found preemption where the plaintiffs attacked distribution of the photographs themselves. The reconciling question is what the lawsuit targets: persona (survives) or control of the copyrighted work (preempted). Read more: Licensing the Image, Not the Athlete: Maloney v. T3Media and Copyright Preemption of the Right of Publicity ›
Did Marshall v. ESPN decide whether college athletes can ever be paid for their names and images?
No. The case decided only that these particular plaintiffs had no right of publicity in the live broadcasts of their games under Tennessee law. It did not address pay-for-play, scholarships, or the licensing of names, images, and likenesses in video games or merchandise, which later NIL developments reshaped separately. Read more: No Cut of the Broadcast: Marshall v. ESPN and the Limits of an Athlete's Right of Publicity ›
Why did the Tennessee statute defeat the claim?
Tennessee's Personal Rights Protection Act expressly exempts the use of a person's name, photograph, or likeness in connection with a sports broadcast. Because the athletes complained about exactly that use, the statute removed it from the right of publicity by its own terms. Read more: No Cut of the Broadcast: Marshall v. ESPN and the Limits of an Athlete's Right of Publicity ›
Could athletes in another state have won?
Possibly different reasoning, but most states treat live sports broadcasts as protected news and entertainment, and many recognize broadcast or newsworthiness exemptions. The First Amendment also weighs heavily against publicity claims over factual coverage of public events. Read more: No Cut of the Broadcast: Marshall v. ESPN and the Limits of an Athlete's Right of Publicity ›
Did this case mean anyone could sell Elvis merchandise?
At the time and under the Sixth Circuit's reading of Tennessee law, the post-mortem right was not inheritable, so the commercial opportunity was open to all. That changed when Tennessee subsequently recognized a descendible right by court decision and statute. Read more: Fame Falls to the Public: Memphis Development v. Factors and Elvis's Post-Mortem Persona ›
Why was a federal court deciding Tennessee law?
The case was in federal court on diversity jurisdiction. Under the Erie doctrine, the court had to apply Tennessee substantive law and, lacking controlling precedent, predict how Tennessee's highest court would rule. Read more: Fame Falls to the Public: Memphis Development v. Factors and Elvis's Post-Mortem Persona ›
Is Memphis Development still good law?
No, not as a statement of Tennessee law. Tennessee's courts and legislature later recognized a descendible post-mortem right of publicity, superseding the Sixth Circuit's prediction. The opinion remains influential as the classic argument against descendibility. Read more: Fame Falls to the Public: Memphis Development v. Factors and Elvis's Post-Mortem Persona ›
Did Midler win money in this case?
Not in this opinion. The Ninth Circuit reversed summary judgment and sent the case back for trial; the appellate decision established the legal theory rather than the damages. A jury later awarded Midler damages on remand. Read more: Midler v. Ford Motor Co.: When a Sound-Alike Steals an Identity ›
Why couldn't Ford rely on its license to the song?
The license covered the musical composition, not Midler's identity. The wrong was not using the song but deliberately imitating Midler's distinctive voice so listeners would think she was singing — an appropriation of her persona that no song license authorizes. Read more: Midler v. Ford Motor Co.: When a Sound-Alike Steals an Identity ›
Does this mean any sound-alike performance is illegal?
No. The tort requires a distinctive, widely recognized voice, deliberate imitation, and a commercial purpose. Tribute performances, parody, and independently created work that merely resembles a singer generally fall outside the rule. Read more: Midler v. Ford Motor Co.: When a Sound-Alike Steals an Identity ›
Did Marilyn Monroe's estate lose its rights in her photographs and trademarks too?
No. The case concerned only the right of publicity — the right to control commercial use of her identity. It did not adjudicate copyrights in particular photographs or any registered trademarks, which are governed by separate federal regimes and were not the basis of the holding. Read more: Milton Greene v. Marilyn Monroe LLC: How a Star's Domicile Decided Who Owns Her Image ›
Why did California's 2007 statute not save the estate?
California Civil Code section 3344.1, as amended by SB 771, could create and pass a post-mortem right of publicity only for a decedent to whom California law applied. Because Monroe was held (by estoppel) to have died domiciled in New York, New York law governed her estate, and New York then recognized no descendible post-mortem right. Read more: Milton Greene v. Marilyn Monroe LLC: How a Star's Domicile Decided Who Owns Her Image ›
What is judicial estoppel, in plain terms?
It is a doctrine that stops a litigant from taking one position, prevailing or gaining an advantage on it, and then asserting a clearly contradictory position later. Its purpose is to protect the integrity of the judicial process, and the Ninth Circuit found Monroe's estate had done exactly what the doctrine forbids. Read more: Milton Greene v. Marilyn Monroe LLC: How a Star's Domicile Decided Who Owns Her Image ›
Did Dr. King have to license his image in life for his estate to control it after death?
No. The Supreme Court of Georgia held that the right of publicity survives death and is inheritable even without any lifetime commercial exploitation, rejecting the argument that the right must have been monetized in life to pass to the estate. Read more: MLK Center v. American Heritage Products: A Descendible Publicity Right Without a Lifetime License ›
What was the product at issue?
American Heritage Products marketed and sold a plastic bust of Dr. King, promoted in part as a funeral accessory, after the King Center declined to participate in the venture. Read more: MLK Center v. American Heritage Products: A Descendible Publicity Right Without a Lifetime License ›
What happened in the federal courts after Georgia answered?
The Eleventh Circuit, in No. 81-7264 (Jan. 3, 1983), applied the Georgia Supreme Court's answers, reversed the district court's contrary judgment, and remanded for further proceedings consistent with the recognized descendible right. Read more: MLK Center v. American Heritage Products: A Descendible Publicity Right Without a Lifetime License ›
Did Alston legalize NIL deals?
Not directly. The holding addressed only education-related benefits. But the opinion's reasoning and Justice Kavanaugh's concurrence made the NCAA's broader compensation bans look indefensible, prompting the NCAA to adopt an interim NIL policy ten days later. Read more: NCAA v. Alston: A Unanimous Court Removes Amateurism's Shield ›
Why didn't the Court rule on pay-for-play?
Because the athletes never appealed the part of the injunction that preserved limits on non-education compensation. That issue was simply not before the Court, which is why the holding is narrow even though its language is sweeping. Read more: NCAA v. Alston: A Unanimous Court Removes Amateurism's Shield ›
Why were the Band Hero avatars not transformative?
The California Court of Appeal found the avatars were exact, literal computer-generated reproductions of No Doubt's members, undistorted and unaltered. Because Activision did not add its own creative interpretation to the likenesses, the avatars were not transformative and the First Amendment did not bar the band's right-of-publicity claim. Read more: No Doubt v. Activision: Literal Avatars Are Not Transformative Use ›
How is this different from Winter v. DC Comics?
In Winter, the comic-book characters were fanciful half-worm villains that distorted and reinterpreted the musicians, making them transformative. In No Doubt, the avatars were precise, unaltered likenesses of the real band, so there was no transformation — the creative surroundings of the game did not change the literal depiction of the performers. Read more: No Doubt v. Activision: Literal Avatars Are Not Transformative Use ›
Does placing a real person in a creative video game make the use transformative?
Not by itself. The court held that inserting exact celebrity likenesses into a creative game does not transform them, especially where the avatars perform the very activity that made the celebrities famous. The expressive context of the game as a whole does not save a literal reproduction of a specific person. Read more: No Doubt v. Activision: Literal Avatars Are Not Transformative Use ›
Did O'Bannon win or lose?
Both, in part. He won the central legal point — that NCAA amateurism rules are subject to the Sherman Act and were an unlawful restraint — and secured the cost-of-attendance remedy. He lost the deferred-cash component of the injunction, which the Ninth Circuit vacated. Read more: O'Bannon v. NCAA: The Likeness Case That Cracked Amateurism ›
Did this case let athletes sign endorsement deals?
No. O'Bannon did not create NIL endorsement rights. It addressed whether schools could compensate athletes for the use of their likenesses, and it ultimately permitted only education-related grants up to the cost of attendance. The endorsement era arrived later, through state statutes and NCAA policy changes in 2021. Read more: O'Bannon v. NCAA: The Likeness Case That Cracked Amateurism ›
Why does this case still matter after Alston and House?
Because it established the analytical machinery — rule-of-reason review of amateurism, the college-education market, and the less-restrictive-alternative inquiry — that every subsequent challenge has used. The Supreme Court declined to review it, leaving the framework standing. Read more: O'Bannon v. NCAA: The Likeness Case That Cracked Amateurism ›
What did Pavesich v. New England Life establish?
It was the first decision by an American state high court to recognize a freestanding common-law right of privacy. The Georgia Supreme Court held that publishing a person's photograph in an advertisement without consent, to promote a business, violates that right and is actionable in tort. Read more: The First Right to Be Let Alone: Pavesich v. New England Life and the Birth of the Privacy Tort ›
Where did the court find a right of privacy when no statute created one?
The court grounded the right in natural law and in liberty, reasoning that a person has a right to be let alone and to control the public use of their own likeness. It drew on the 1890 Warren and Brandeis article The Right to Privacy and rejected the contrary New York decision in Roberson. Read more: The First Right to Be Let Alone: Pavesich v. New England Life and the Birth of the Privacy Tort ›
How is this different from the Roberson case in New York?
Three years earlier, New York's highest court refused to recognize a common-law right of privacy in Roberson v. Rochester Folding Box Co. Pavesich reached the opposite conclusion, and its reasoning proved far more influential, becoming the foundation for the modern privacy and publicity torts adopted across the country. Read more: The First Right to Be Let Alone: Pavesich v. New England Life and the Birth of the Privacy Tort ›
What did Roberson v. Rochester Folding Box Co. hold?
By a 4-3 vote, the New York Court of Appeals held that the common law did not recognize a right of privacy, so a young woman whose photograph was used without consent on 25,000 flour advertisements had no legal remedy. The court declined to create the right judicially, leaving it to the legislature. Read more: Flour of the Family: How Roberson v. Rochester Folding Box Denied Privacy and Forced a Statute ›
What happened after the court rejected the claim?
Public outrage over the decision pushed the New York Legislature to act quickly. In 1903 it enacted what became Sections 50 and 51 of the New York Civil Rights Law, making it unlawful to use a living person's name, portrait, or picture for advertising or trade without written consent, and providing for injunctions and damages. Read more: Flour of the Family: How Roberson v. Rochester Folding Box Denied Privacy and Forced a Statute ›
Why is Roberson important if the plaintiff lost?
Roberson framed the entire American debate over privacy. Its refusal to recognize a common-law right prompted the first state privacy statute and set up the contrast with Georgia's Pavesich decision three years later, which reached the opposite conclusion. Together they shaped how every other state approached the question. Read more: Flour of the Family: How Roberson v. Rochester Folding Box Denied Privacy and Forced a Statute ›
Did the soldier prove the character was based on him?
The court did not need to resolve that factual dispute. Even assuming the character drew on Sarver's life, the First Amendment protected the film as speech on a matter of public concern, and the right of publicity could not override that protection on these facts. Read more: Stories Taken from Life: Sarver v. Chartier and the First Amendment Shield for Films ›
Why did Sarver's status as "not a celebrity" matter?
The right of publicity protects the commercial value a person builds in a marketable identity. Because Sarver had not cultivated such value, the economic rationale for the right was absent, and there was no compelling interest to justify restricting the film. Read more: Stories Taken from Life: Sarver v. Chartier and the First Amendment Shield for Films ›
Does Sarver mean filmmakers can depict anyone without consent?
No. It holds that films addressing matters of public concern receive strong First Amendment protection and that publicity claims fail where the plaintiff lacks a cultivated commercial interest. Defamation, false light, and uses that merely exploit identity to sell products raise different issues. Read more: Stories Taken from Life: Sarver v. Chartier and the First Amendment Shield for Films ›
Did Goodyear use Nancy Sinatra's actual recording?
No. The commercials used the licensed song performed by other, unidentified singers in a style reminiscent of her hit. No recording of her voice was replayed, and no one claimed she had performed. Read more: Sinatra v. Goodyear: When a Music License Defeats a Voice Claim ›
If she lost, how did Bette Midler later win on similar facts?
The claims were different. Sinatra's grievance was tied to a licensed song, which triggered copyright preemption. Midler's was framed as appropriation of her identity — her distinctive voice — an interest copyright does not protect, so the song license was no defense. Read more: Sinatra v. Goodyear: When a Music License Defeats a Voice Claim ›
Is the ELVIS Act a court ruling?
No. It is an enacted Tennessee statute — legislation, not litigation. It amends the existing Personal Rights Protection Act and creates new civil and criminal liability; how courts will apply it is still developing. Read more: The ELVIS Act: Tennessee Makes 'Voice' a Protected Property Right Against AI Cloning ›
Does it ban AI voice tools outright?
No. It targets tools whose "primary purpose or function" is producing unauthorized replicas of a person's voice or likeness, and it preserves exceptions for news, commentary, criticism, parody, and other fair uses. General-purpose tools with substantial legitimate uses are not automatically covered, though the boundary is untested. Read more: The ELVIS Act: Tennessee Makes 'Voice' a Protected Property Right Against AI Cloning ›
Does it protect ordinary people or only celebrities?
It protects every individual's voice and likeness, not just the famous. As a practical matter the highest-value claims will come from recording artists and public figures, but the statutory right is not limited to them. Read more: The ELVIS Act: Tennessee Makes 'Voice' a Protected Property Right Against AI Cloning ›
What did the court actually decide?
It granted a preliminary injunction barring the NCAA from enforcing its NIL-recruiting rules while the case proceeds. The court found the states likely to succeed on their Sherman Act claim that the rules unlawfully restrained the market for athletes' name, image, and likeness rights. Read more: Price-Fixing in the Recruiting Market: Tennessee v. NCAA and the Injunction Against the NIL Ban ›
Does this mean recruits can be paid to play?
Not exactly. The ruling lets recruits and athletes negotiate NIL compensation with collectives and boosters before committing to a school, rather than after. It addresses NIL deals tied to publicity rights, not direct pay-for-play salaries, though the line has blurred in practice. Read more: Price-Fixing in the Recruiting Market: Tennessee v. NCAA and the Injunction Against the NIL Ban ›
Why was this framed as an antitrust case rather than a publicity case?
Because the plaintiffs were state attorneys general challenging the NCAA's rules as an agreement among competing schools that suppressed compensation. The court analyzed the recruiting ban as a horizontal restraint—effectively price-fixing—in the market for athletes' NIL rights under the Sherman Act. Read more: Price-Fixing in the Recruiting Market: Tennessee v. NCAA and the Injunction Against the NIL Ban ›
Did Tin Pan Apple recognize a right against voice imitation?
Not under New York's privacy statute. The court held that imitating the Fat Boys' distinctive vocal sounds did not, by itself, state a claim under New York Civil Rights Law Sections 50 and 51, which protect a person's name, portrait, or picture. The voice-based statutory theory was dismissed, though copyright and Lanham Act claims about the imitation proceeded. Read more: Hugga-Hugga, Brrr, and the Limits of Voice: Tin Pan Apple v. Miller Brewing ›
Then what survived the motion to dismiss?
The court allowed the copyright infringement claims, the Lanham Act false-endorsement and unfair-competition claims, and the New York Section 50 and 51 claim based on visual look-alikes to go forward. It dismissed the separate sound-alike statutory claim and several other counts. Read more: Hugga-Hugga, Brrr, and the Limits of Voice: Tin Pan Apple v. Miller Brewing ›
How does this compare to California voice cases like Midler v. Ford?
California recognized a common-law right against deliberate imitation of a famous singer's distinctive voice in Midler v. Ford and Waits v. Frito-Lay. Tin Pan Apple shows that New York's narrower statutory scheme does not reach voice as such, so the same conduct can yield different results depending on the governing state law. Read more: Hugga-Hugga, Brrr, and the Limits of Voice: Tin Pan Apple v. Miller Brewing ›
Is there a federal right of publicity that would have simplified this?
No. Congress has not created one. The Lanham Act addresses false endorsement and confusion but is not a property right in identity, and the Copyright Act protects works, not personas — which is the gap that leaves publicity law to the states. Read more: Identity Is Not a Work of Authorship: Toney v. L'Oréal and the Limits of Copyright Preemption ›
What exactly did Host International do?
It operated airport bars designed to look like the Cheers set and placed two animatronic robots at the bar in the positions of the characters Norm and Cliff. The robots had different names, but Wendt and Ratzenberger — who played those characters — claimed the figures appropriated their own likenesses for commercial advantage. Read more: Robots at the Cheers Bar: Wendt, Animatronics, and the Persona of a Role ›
If Paramount owned Cheers, how could the actors sue?
Paramount owned the copyright in the show and its characters, but the actors asserted rights in themselves — their personal likenesses — not in the characters. The Ninth Circuit held that the studio's copyright did not extinguish the performers' independent right of publicity, so a license to evoke the characters did not necessarily license use of the actors' likenesses. Read more: Robots at the Cheers Bar: Wendt, Animatronics, and the Persona of a Role ›
Why is Judge Kozinski's dissent so often cited?
Because it framed the copyright-preemption problem at the center of the case: if a studio owns and can license a character, letting actors block robot versions of that character lets state publicity law override federal copyright. His "Robots again" dissent remains the leading articulation of the conflict between performers' persona rights and copyright owners' control of their works. Read more: Robots at the Cheers Bar: Wendt, Animatronics, and the Persona of a Role ›
Did Samsung lose because it used Vanna White's image?
No — and that is the point. Samsung used no image of White at all, only a robot styled to evoke her. The court affirmed dismissal of her statutory claim precisely because the robot was not her "likeness." She prevailed on the common-law theory, which protects identity more broadly than the enumerated attributes in the statute. Read more: When a Robot Becomes You: White v. Samsung and the Reach of Identity ›
What is the difference between section 3344 and the common-law right of publicity in California?
Section 3344 is a statute that protects a fixed list of signifiers — name, voice, signature, photograph, or likeness — used knowingly for advertising or on products. The common-law right is broader and protects appropriation of a person's "identity" generally, which is why the same robot could fail the statutory test yet support a common-law claim. Read more: When a Robot Becomes You: White v. Samsung and the Reach of Identity ›
Is White v. Samsung still good law?
The decision remains binding Ninth Circuit authority and is frequently cited, but it is also among the most criticized publicity opinions, largely because of Judge Kozinski's dissent from the denial of rehearing en banc. Later courts apply its identity-appropriation principle while using transformative-use and First Amendment doctrines to cabin its reach. Read more: When a Robot Becomes You: White v. Samsung and the Reach of Identity ›
What is the transformative use test?
Drawn from copyright fair use, it asks whether a work that uses a celebrity's likeness adds significant creative elements so that it becomes something more than a literal depiction of the person. If the celebrity is merely raw material for an expressive work, the First Amendment protects it against a right-of-publicity claim; if the work is a literal reproduction that derives its value from the celebrity's fame, it is not protected. Read more: Winter v. DC Comics: Transformative Use Shields the Autumn Brothers ›
Why did the Winter brothers lose?
The California Supreme Court found that the comic-book characters "Johnny and Edgar Autumn" were fanciful half-worm villains in a larger story, not literal portraits of the musicians. Because the Winters were only part of the raw materials from which the comics were synthesized, the works were transformative and shielded by the First Amendment. Read more: Winter v. DC Comics: Transformative Use Shields the Autumn Brothers ›
Does marketing the work as celebrity-based defeat the defense?
No. The court held that the relevant question is whether the work itself is transformative, not how it is advertised or whether it is labeled parody, satire, or caricature. A transformative work does not lose First Amendment protection because a celebrity's fame helps sell it. Read more: Winter v. DC Comics: Transformative Use Shields the Autumn Brothers ›
Did the court rule that Reface is illegal?
No. It ruled only that Young's lawsuit can proceed. The court rejected NeoCortext's attempts to end the case early; it did not decide whether the app actually violates the right of publicity. That will be litigated on the merits. Read more: Young v. NeoCortext: When a Face-Swap App Meets California's Right of Publicity ›
Why couldn't NeoCortext win on the "transformative use" defense?
Because whether a face-swap output is sufficiently transformative is a factual question. The Ninth Circuit held NeoCortext had not shown the outputs were transformative "as a matter of law" — meaning the defense could not be resolved on the pleadings, not that it can never succeed. Read more: Young v. NeoCortext: When a Face-Swap App Meets California's Right of Publicity ›
Is this a class action yet?
It is a putative class action — pleaded on behalf of a proposed class but not yet certified. Whether the court will certify a class of the many people allegedly in Reface's catalog remains an open and contested question. Read more: Young v. NeoCortext: When a Face-Swap App Meets California's Right of Publicity ›
Is Zacchini the only Supreme Court right-of-publicity case?
Yes. Decided in 1977, it remains the only time the Supreme Court has addressed the right of publicity, which is why it features in nearly every modern First Amendment publicity dispute despite its narrow facts. Read more: The Whole Act: Zacchini and the Supreme Court's Only Right-of-Publicity Ruling ›
Did the Court say the press can never use a performer's image?
No. The Court protected a State's power to impose liability for broadcasting a performer's entire act. It preserved the press's freedom to report on performances and did not address excerpts, descriptions, or transformative uses. Read more: The Whole Act: Zacchini and the Supreme Court's Only Right-of-Publicity Ruling ›
Why did the Court compare the right of publicity to copyright?
Justice White grounded the right in economic incentives—rewarding the investment required to produce a valuable performance—an interest he called closely analogous to the goals of patent and copyright law, rather than in privacy or reputation. Read more: The Whole Act: Zacchini and the Supreme Court's Only Right-of-Publicity Ruling ›
Educational content, not legal advice. These answers explain general legal concepts under U.S. law and are not a substitute for advice from a licensed attorney. Laws vary by jurisdiction and change over time.