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Guest Blawgger, Ross Kerr – Is the right to publicity a property right or a publicity right?

A few weeks ago, the District of New Hampshire decided that right of publicity claims were “intellectual property” claims, and thus such claims fell outside Section 230 immunity. See Gimme section 230 shelter – online dating pranks and CDA Immunity.

This got me wondering… how would Florida courts look at this issue? I asked my students to analyze it, and Mr. Kerr turned in a particularly blog-worthy analysis. Read it after the jump.

The right to publicity is often characterized as both a single stick in the bundle of privacy rights protected by tort law and as a property interest. The way in which the right to publicity is characterized is important to determining what protections the right offers, most importantly, whether or not the right may be transferred and devised. Each state may determine how to characterize the right to publicity and whether to acknowledge it at all.

Florida’s Position on Publicity Rights

Florida protects publicity rights under both statute and common-law. Under Florida common-law, a plaintiff is entitled to compensation for the deprivation of the right to control the use of his or her name when such constitutes a commercially valuable asset. This common law right to publicity grew out of Florida’s settled privacy law protecting against appropriation, a privacy right.

Fla. Stat. Ch. 540.08 also forbids the public use of a person’s name or likeness for any commercial or advertising purpose. The rights granted by this statute are in addition to any rights available under the common law rights of privacy. In addition to the rights at common law, the Florida statute provides for the assignment of one’s rights and provides for the extension of these rights after death.

While Florida right to publicity law is rooted in the privacy protections against appropriation, the current right to publicity statute is structured to protect a property interest in a publicly recognized individual’s identity. Florida statutory provisions make the right to publicity assignable, not only to one’s family on death, but also to any corporation or person during the individual’s life time. Florida’s right to publicity protections are in line with property rights which are generally assignable as opposed to privacy rights which generally are not. In addition, the statute provides for the recovery of reasonable royalty’s in the case of a violation of a right to publicity. These types of damages are different from the torts of privacy which generally only protect against emotional damages that arise from the invasion of a privacy right. The weight of Florida law is squarely on the side of a property right to publicity.

However, because there is not explicit statement from the legislature or the Supreme Court of Florida on the issue, it could still be argued that the right to publicity in Florida is a privacy right. Following are possible arguments in favor of both positions.

Arguments in Favor of a Property Rights Interpretation

While the purposes of privacy torts are to protect an individual from personal emotional or psychological harm, the purpose of the protections for a persons right to publicity is to ensure that the effort that has been expended in building one’s individual “brand” is not diminished or squandered by another. The torts protecting a person’s privacy are focused on facilitating one’s quiet enjoyment of their life, a personal harm. The right to publicity protects one’s monetary interest in the marketability of their persona. The right of publicity therefore falls into those actions used to protect one’s personal property.

In Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court of the United States noted that the State’s interest in protecting a right to publicity is closely analogous to the goals of intellectual property rights, “focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation.”

The purpose of the privacy torts is to compensate individuals from harm while the purpose of the right to publicity prevents a third party from benefiting from the plaintiff’s acquired name recognition.

Argument in Favor of a Privacy Right Interpretation

The single United States Supreme Court case to decide an issue of right to publicity was Zacchini v. Scripps-Howard Broadcasting Co., published in 1977. In Zacchini, the plaintiff was an entertainer who engaged in the unlikely profession of human cannonball. He regularly performed his feats of skill at a county fair where the visitors could come watch his act for no more than the admission charged at the entrance to the fair. A reporter recorded the plaintiff’s show without consent and it was broadcast in it’s entirety during the evening news. The United States Supreme Court, speaking through Justice White – who was not unaccustomed to the spotlight having played professional football for the Pittsburgh Steelers and Detroit Lions – determined that the broadcast was not protected under the First Amendment to the United States Constitution and therefore susceptible to a state law claim of right to publicity. The Court reasoned that if individuals could watch the human cannonball from home on their evening news, they may be less likely to visit him in person at the fair. The Court never explicitly stated that the right was linked to property, and portions of The Court’s opinion could be construed to protect a nature much closer to a right of privacy than property right.

In Zacchini, the plaintiff put on a show for what he thought was an audience of fair goers. By introducing a video camera to the act, the news station violated a private performer and audience experience. The Zacchini case could be construed as protecting the privacy right of a performer to control the interaction between themselves and their fans and audience.

Conclusion: The Right to Publicity is a Property Based Right?

The sole argument for a privacy right interpretation is very compelling from an artistic standpoint. The idea is close to the Civil Law (read: French) conception of Moral Rights that invest in an author by virtue of her having created something. The problem with this is that Moral Rights are by their nature not assignable, as they arise out of the inherent nature of the creative act and are bound by it. Currently, the Florida right to publicity is an assignable right. This unlinking of an individual’s identity from their ability to control how this identity is portrayed to the world – linked to various products / ideas – may be undesirable from some standpoints, however, it is how the courts currently view the right to publicity.

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