Can “Tell-Alls” Tell All?
A Review of Right to Publicity Rights in North Carolina
Article Date: Wednesday, June 06, 2012
Written By: Anna Arnopolsky
After the conclusion of their public and rather spiteful divorces, the wives of Terry Bollea (a.k.a. “Hulk Hogan”) and Jude Law wrote “tell-all” books describing their former relationships. As evidenced by the titles, “The Crazy Years” and “Wrestling the Hulk: My life against the ropes,” the books directed less than glamorous spotlights on the authors’ celebrity ex-spouses. In fact, former Mrs. Bollea not only wrote about her ex-husband’s alleged sexual relationship with another male wrestler, but also extensively detailed incidents of physical abuse. Perhaps even more prevalent than print publication, reality television has become a popular forum for similar disclosures. For instance, VH-1’s “Basketball Wives” is a television series about the lives of wives, girlfriends and several ex-wives of NBA’s biggest players. Chris Bosh of the Miami Heat and Gilbert Arenas of the Orlando Magic tried to prevent their exes from participating in the program by filing a variety of claims including trademark infringement and misappropriation of likeness. Fortunately for the movie stars and the pro-ballers, their claims were brought in states where publicity rights are protected by statute and developed extensively through common law.
Since North Carolina is not similarly situated to celebrity-ridden states such as California, Florida, and New York, publicity rights are not seen at the forefront of the intellectual property arena. Nevertheless, with the rise and increasing popularity of modeling agencies, professional athletic teams and NASCAR, litigation concerning publicity rights in North Carolina may become more widespread in the near future. In addition, although publicity rights are closely associated with celebrities, these rights do not solely belong to the famous. Consider the following example: A librarian. She works in a small town library and throughout ten years of employment closely observes the customers. While some entertain themselves with pornographic websites, others leaf through books of genealogy hoping to find connections with some of history’s most famous personalities. Through the lenses of her thick-framed glasses, she knows all, sees all. Finally, equipped with years of information, she publishes a book that she calls a work of “fiction.” She changes the names of the characters, but since the population of the town does not exceed 10,000, the physical descriptions are quickly linked to their owners. These are not celebrities, but their stories and the intimate details of their lives were used for a commercial gain and they are outraged. What are their rights? Can they seek injunctive relief? Damages?
This article will address these and related question surrounding the right to publicity in North Carolina. After a brief review of the historical backdrop, the article will turn to the status of the law nation-wide and in North Carolina in particular. The ultimate goal of this writing is to provide a succinct briefing on the law concerning the right to publicity for North Carolinian practitioners who may face these issues.
The right of publicity is a fairly new intellectual property right first recognized in the early 1950’s by the Second Circuit in Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) (defining New York law with regard to rights of publicity). Prior to that seminal case, publicity rights were recognized merely as a subset of the right to privacy. In fact, in the 1920’s and 1930’s the courts generally refused to give serious consideration to claims brought by celebrities seeking relief for violation of their right to publicity because of a widespread belief that they carried the burden of their celebrity. By contrast, in the modern era of celebrity endorsement and the price tag that can come with cultivating and selling an image, the right to publicity is invoked to protect the famous from the unauthorized use of their name and likeness. The right to publicity, however, is not merely reserved for the star-stunned world of Hollywood. Today, the right to publicity is recognized as “the inherent right of every human being to control the commercial use of his or her identity.” J. Thomas McCarthy, The Rights Of Publicity And Privacy § 1:3 (2d. ed. 2006).
The road to this recognition, however, was a long one. Many have noted that scholars often trace the origin of the right to publicity to the right of privacy and consider the former a product of the latter. See generally, Hasting H. Beard, Squeezing ‘The Juice’: Can The Right of Publicity Be Used to Satisfy a Civil Judgment? 15 J. INTELL.PROP.L. 143 (2007); Joseph J. Beard, Fresh Flowers For Forest Lawn: Amendment of the California Post-Mortem Right of Publicity Statute, 17 ENT. & SPORTS LAW. 1 (2000); SHERRI L. BURR, ENTERTAINMENT LAW IN A NUTSHELL 300-12 (Thomas West 2d ed. 2007) (2004); JAY SHANKER ET AL., ENTERTAINMENT LAW & BUSINESS § 4 (Juris Publishing, Inc. 3d ed. 2009). The right to privacy is frequently thought to have taken shape through Samuel Warren and Louis Brandeis’s 1980 Harvard law review article and William Prosser’s 1960 California law review article. Id. Warren and Brandeis presented the right to privacy as a broad tort supported by the policy rationale of plain human dignity or, as Thomas Cooley put it, “the right…to be let alone.” Id.; see also Thomas M. Cooley, The Law Of Torts 29 (2d ed. 1888). Prosser narrowed the breath of the tort introduced by Warren and Brandeis and instead described the right to privacy as the right to control or protect four interests: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness. This is often referred to as the “four-tort” theory and is still used as a typical description of the right of privacy. Paul M. Schwartz & Karl-Nikolaus Peifer, Prosser’s Privacy And The German Right of Personality: Are Four Privacy Torts Better Than One Unitary Concept? 98 CAL. L. REV. 1925, 137-43 (2010).
Although the right to publicity developed from the right to privacy, it is not a subset of the former right. Since consent is often an affirmative defense to the tort of public disclosure of private facts, courts found it difficult to resolve the claims of celebrities who were thought to have consented by virtue of their fame. For instance, in O’Brien v. Pabst Sales Co., the Fifth Circuit denied relief to a famous football player whose photographs were used in a beer commercial reasoning that “the publicity he got was only that which he was constantly seeking a receiving” and therefore had no privacy protection. 124 F.2d 167, 170 (5th Cir. 1941). After a number of similar nation-wide attempts to characterize the right to publicity as a privacy right, the Second Circuit finally recognized that the two rights are distinct in Haelen Labs, 202 F.2d. 866. The New York court was the first to hold that due to the inherent economic value associated with the exploitation of a celebrity’s image, the right to publicity is an assignable property right different from the mere right to privacy meant to address “bruised feelings from public exposure.” Id. at 868. It took an additional twenty years for courts to become comfortable with the doctrine laid out by the Second Circuit. In 1977 the Supreme Court officially recognized the right to publicity as different from the right to privacy in Zacchini v. Scripps-Howard Broadcasting Co. and thus confirmed the Second Circuit’s decision:
the interest protected in permitting recovery for placing the plaintiff in a false light is clearly that of reputation, with the same overtones of mental distress as in defamation. By contrast, the State’s interest in permitting a “right of publicity” is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.
433 U.S. 562, 573 (1977). Thus, the right to publicity emerged from the realization that there may be more at stake than a bruised ego when intimate facts are publicly revealed. Those intimate facts may materially harm a person’s image, and the corollary right to profit from that image.
The Current State Of The Law
The National Arena | Since there is currently no federal law addressing the right to publicity, the result of a particular suit will vary from jurisdiction to jurisdiction. Despite these inconsistencies, currently thirty states recognize the right to publicity at least by common law and nineteen of recognize it statutorily. Nebraska and New York have enacted statutes in spite of the fact that the right to publicity was originally rejected by their respective common laws. Louisiana stands alone because, while it does not recognize the right to publicity in its civil code, the right is recognized in the state’s criminal code and imposes criminal liability on a violation of a soldier’s right to publicity.
The states that do recognize the right to publicity allow various degrees of protection. However, none of the states require use in commerce as an element of a claim. While all of the states at least protect one’s name, likeness, and voice, states like California offer more protection by also covering signatures, photographs, distinctive appearances, portraits, and images. Eighteen of the mentioned states extend the right to publicity post-mortem for periods ranging from 10 to 100 years. Finally, the majority of the states recognize that celebrity status is not a prerequisite for bringing a right to claim; thus, non-celebrities too have the right to publicity. J. Thomas McCarthy, The Rights Of Publicity And Privacy §§ 4:14, 9:21-:40 (2d ed. 2010).
Defining the right to publicity | Both the Restatement Third and well as most of the jurisdictions mentioned above define the right to publicity as a property right. Being such, this right is freely assignable to persons other than the original owner. If desired, the assignment of such rights can include the sale of all legal and equitable title to the assignee and the assignee thus stands in the shoes of the assignor. Such a transfer occurs, for example, in the case of a celebrity who may want to transfer his or her publicity rights to a spouse prior to death. Often, however, partial alienability of such rights occurs through licenses or sales. Id.
In spite of the generally accepted view that treats the right to publicity as an asset, some scholars voice philosophical and moral objections to treating one’s personal publicity rights in that matter, viewing this as contrary to the dignitary nature of the right to publicity. Hasting H. Beard at 147.
However, no matter how uncomfortable the idea that one’s persona can be sold may be, this is the approach taken by the American legal system as evidenced by statutes, case law, and the opinions of legal scholars. There are other justification as well. Melville Nimmer, for example, suggested that the right to publicity is logical due to the labor principle. Melville B. Nimmer, The Right of publicity, 19 Law & Contemp. Probs. 203, 218-23 (1954). That is, something with value is entitled to the fruits of its economic gain. Id. Not only is there a per se entitlement to this right, but it is further validated by the public reaction upon encountering a certain personality or identity. Lugosi v. Universal Pictures, 603 P.2d 425, 431 (Cal. 1979).
Besides the economic rationalization for compartmentalizing the right to publicity as a property right, the fact that it is not generally considered to fit within defined intellectual property theories provides further justification. First, copyright law does not create an appropriate forum for the right to publicity. This is so because it is difficult to define the work that is at issue. Is it the work in which the right of publicity holder appears or the holder’s likeness, name, persona, or voice? The courts that have tackled this issue have agreed that it is the latter. Thus, since the law does not allow a person’s name, likeness, or persona to be copyrighted, Copyright Law does not provide appropriate protection for the right to publicity. See generally Jennifer E. Rothman, Copyright Preemption and The Right Of Publicity, 36 U.C. DAVIS L. REV. 199 (2002). Similarly, trademark law, although perhaps most closely analogous, still does not provide sufficient protection. This is partly so because a trademark infringement claim requires the owner of the trademark to use the mark in commerce and the doctrine of “trademark use” limits the pool of defendants to those who have used a mark in connection with the sale of a good or service. Thus, while a trademark action may protect the publicity rights of a famous celebrity whose name is protected by Trademark law, it will not be a useful tool to a non-celebrity claimant, or even to an athlete or movie start whose name or likeness has not been used in commerce.
North Carolina recognizes neither a statutory right to publicity nor a developed common law recognizing the right. In 2009, the North Carolina General Assembly was considering the “Right to Publicity Act,” sponsored by Senator Rand. For a more detailed discussion of the statute, see Rick Conner and Corby Anderson, Right of Publicity Statute Considered in North Carolina, NCBA Sports & Entertainment Newsletter (2009). This bill was proposed pursuant to House Bill 327 and Senate Bill 366 and would have had the effect of creating a statutory right to publicity in North Carolina and thereby protecting individuals from commercial use of their personality. S. DRS85078-TC-11, 2009 Gen. Assem., Reg. Sess. (N.C. 2009).
This legislation was supposed to become effective on Jan. 1, 2010, but it was not passed. Therefore, in the absence of statutory support, a practitioner pursuing a right to publicity claim will have to rely on sparse common law.
The only common law available in North Carolina pertains to the right to publicity as a subset of privacy law. Hall v. Post, 85 N.C. App. 610, 615, 355 S.E.2d 819, 823 (1988) (“Intrusion as an invasion of privacy is [a tort that] . . . does not depend upon any publicity given a plaintiff or his affairs but generally consists of an intentional physical or sensory interference with, or prying into, a person’s solitude or seclusion or his private affairs.”) . To date, there has not been a decision recognizing the right to publicity as distinct from the right to privacy. For example, in 2009 the North Carolina Court of Appeals addressed whether the use of photographs by a former employer on the firm’s website constituted an intentional tort action under the invasion of privacy theory in Merritt, Flebotte, Wilson, Webb & Caruso, PLLC v. Hemmings. 676 S.E.2d 79, review denied, 363 N.C. 655, 686 S.E.2d 518 (2009). The court affirmed the entry of summary judgment because the former employee failed to meet his evidentiary burden. In addition, the Supreme Court of North Carolina has recognized that “an invasion of privacy by the appropriation of a plaintiff’s photographic likeness for the defendant’s advantage as a part of an advertisement constitutes a tort giving rise to a claim for relief.” Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984) (citing Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938)).
Thus, in North Carolina, the case law at least supports a cause of action under tort law for the misappropriation a photographic likeness and therefore establishes this narrow scope of protection for the right to publicity through the laws on privacy. Additionally, it must be noted that North Carolina does not recognize all four of Prosser’s privacy torts. Specifically, the State Supreme Court ruled that due to a deadlock with the First Amendment, causes of action under the theories of false light and public disclosure of private facts are impossible in North Carolina. See Hall, 85 N.C. App. at 614.
Bringing A Suit In North Carolina: Cause Of Action
As mentioned above, the appropriate cause of action would depend on which state the case is filed in. Picking the appropriate jurisdiction is therefore a crucial component of success in litigation. Other states employ different choice-of-law rules falling within three broad categories: (1) the law of the forum; (2) the law of the place of infringement; or (3) the law of the place of plaintiff’s domicile. J. Thomas McCarthy, The Rights Of Publicity And Privacy §§ 11:12-:15 (2d ed. 2010).
If North Carolina has the appropriate personal and subject matter jurisdiction, a claim of right to publicity could be a case of first impression since that right has not been recognized as independent from privacy. In other jurisdictions, plaintiffs must generally establish four elements to bring a right to publicity claims: (1) defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) a lack of consent; and (4) resulting injury. Kendall K. Johnson, Enforceable Fair and Square: The Right of Publicity, Unconscionability, and NCAA Student-Athlete Contracts, 19 SPORTS LAW J. 1, 12 (2012).
Additional claims could also be brought under tort law. Since, as mentioned above, North Carolina does not recognize all four privacy torts, claims may be brought under the torts of intrusion upon seclusion and appropriation of name or likeness. These are both intentional torts and therefore must be proved by the preponderance of the evidence. In addition to the publicity and privacy claims, however, the plaintiff may also bring claims under Copyright Law, Trademark Law, and the Lanham Act. As discussed above, the biggest challenge with bringing a claim under Copyright Law would be to show that the fixed medium in question is the work in which the plaintiff’s name or likeness appears (rather than the name or likeness itself). Trademark infringement is likely the strongest claim for a famous client. Finally, subsection 43(a) of the Lanham Act creates liability for “[a]ny living person who, on or in connection with any goods or services, ... uses in commerce ... false or misleading representation of fact, which is likely to cause confusion ... or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1) (2006). Not only are right to publicity claims often filed simultaneously with Lanham Act claims, some scholars believe that the Act is well-equipped to protect publicity rights without any reliance on right to publicity law. Indeed, while New York City’s infamous naked cowboy could not succeed against Mars, Inc. by evoking § 51 of New York’s right to publicity statute, the Lanham Act claim enabled the plaintiff to proceed. Burck v. Mars, Inc., 571 F. Supp. 2d 446 (S.D.N.Y. 2008).
And what of the “tell-all” publication? The Restatement Third of Unfair Competition explicitly states that “the right to publicity is not infringed by dissemination of an unauthorized print or broadcast biography.” See Restatement Third, Unfair Competition § 47, comment s (1995). Thus, no living person has the exclusive right to tell his or her own life story. In the case of public figures or those who were once closely associated with public figures, the First Amendment stands as an additional barrier to claims against “tell-all” publication since newsworthy reports of people or events are constitutionally protected. In fact, both the rights to publicity and the rights to privacy of an individual are outweighed by the public interest in newsworthy events. See Rosemont Enterprises, Inc. v. Random House, Inc., 58 Misc. 2d 1, 294 N.Y.S.2d 122, 128-29 (Sup. 1968); see also McCarthy, supra, at § 8:64-:66. The unwillingness to allow the First Amendment to budge to publicity and privacy rights is exemplified by cases brought by celebrities such as George Balanchine, Agatha Christie, and Marilyn Monroe all of whom were unhappy with various works disclosing facts about their lives and all of whom were unsuccessful in litigation. McCarthy, supra, at § 8:65. Defamation, however is still a viable suit as the First Amendment is not immune to this claim. To receive full protection, therefore, the author of a “tell-all” can try to contract with the subject of the book to waive the right to sue for defamation.
Perhaps due to the First Amendment issue discussed above, none of the cases discussed in the introduction came to fruition. However, the threat of lawsuit and the negative publicity often times proved to be enough for the frustrated celebrities to achieve results. For example, after Jude Law’s attorney sent Sadie Frost a writ, she promptly removed from her memoir the passages at issue prior to publication. Similarly, Terry Bollea dropped the charges against his wife after the couple finally settled their messy divorce by allocation 70 percent of liquid assets to the former Mrs. Hulk. Gilbert Arenas did have his day in court, but was not successful. The basketball star filed a suit against the reality show in the Central District of California under section 43(a) of the Lanham Act and claimed trademark infringement and trademark dilution. The Court of Appeals, however, affirmed the decision of the District Court that denied a motion for preliminary injunction on the basis of the defendant’s First Amendment rights. After Chris Bosh filed a lawsuit in a district court in Florida, the producers responded by firing Bosh’s ex. Now however, the reality television start is countersuing her famous ex for intentionally, knowingly, and without justification interfering with her employment. Finally, the librarian. She is an actual person living in Detroit, but no longer working as a librarian. Due to the massive outrage that followed the publication of “The Library Diaries,” Sally Stern of Detroit has been fired from her job. As a result, she was forced into bankruptcy and the settlement she received from the wrongful termination of employment suit has been handed to her creditors. The publishing company is refusing to print any more copies of her book and the visibly hurt neighbors are discussing the possibility of a lawsuit. •
Anna Arnopolsky is a graduate of Elon University School of Law, Class of 2012.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.