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Movie Prop Money Laws

In most states, you can be sued for using someone else's name,likeness, or other personal attributes without permission for anexploitative purpose. Usually, people run into trouble in this areawhen they use someone's name or photograph in a commercial setting,such as in advertising or other promotional activities. But, somestates also prohibit use of another person's identity for the user'sown personal benefit, whether or not the purpose is strictlycommercial. There are two distinct legal claims that potentially applyto these kinds of unauthorized uses: (1) invasion of privacy throughmisappropriation of name or likeness ('misappropriation'); and (2)violation of the right of publicity. (The 'right of publicity' is theright of a person to control and make money from the commercial use ofhis or her identity.) Because of the similarities betweenmisappropriation and right of publicity claims, courts and legalcommentators often confuse them. We will not try to exhaustivelyexplain the differences between these two legal claims here. It ismostly important for you to understand the legal principles that arecommon to both claims; we will point out relevant differences below andon the state pages when appropriate.

You might be familiar with the now-famous case of Alison Chang,which is a good example of a potentially unlawful use of someone's nameor likeness. In September 2007, Chang's parents filed a lawsuitin state court in Texas against Virgin Mobile Australia and CreativeCommons. Virgin Mobile Australia obtained a photograph of Chang fromFlickr, where is was posted with a CC 'Attribution' license, which gave Virgin Mobile permission from a copyright perspectiveto use the photograph in a commercial setting so long as it gaveattribution to the photographer who took the photo. (For information oncopyright licensing, see Copyright Licenses and Transfers.)Virgin Mobile used the photograph in an advertising campaign to promoteits free text messaging and other mobile services without gettingpermission from Chang or her parents to use her name or likeness.Chang's parents sued Virgin Mobile for misappropriation of herlikeness, and the facts would also have supported a claim for violationof her right of publicity. They brought other claims against CreativeCommons, which they dismissed shortly after filing the lawsuit. Thecase, which was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile, is interestingbecause it highlights the fact that somebody seeking to use aphotograph needs to worry not just about copyright law, but alsomisappropriation and rights of publicity.

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The Chang case involved a clearly commercial use of herlikeness. As a general matter, you should never use someone's name orphotograph in advertising or promotion of your website or blog withoutpermission. The same goes for creating merchandise that you plan tosell to the public which incorporates someone's name or photograph.With the limited exception for 'incidental advertising use' discussedbelow, you need to get consent for commercial uses like these. But whatabout a casual reference to your neighbor in a blog post? Or what ifyou write an article about a local politician that features hisphotograph? Or what if you publish a photograph that you took of afamous actress walking down the red carpet at the Oscars? Fortunately,the law does not give individuals the right to stop all mention,discussion, or reporting on their lives or activities. The common lawof most states creates an exception to liability for news reporting andcommentary on matters of public interest, and many state statutesexplicitly exempt news reporting and other expressive activities fromliability. Despite these substantial protections, it is a good practiceto obtain consent of the person depicted when you publish photographsor other personal information about someone on your blog, especially ifyour use might be construed as commercial or promotional.

Who Can Sue for Unlawful Use of Name or Likeness

Only human beings, and not corporations or other organizations, haverights of publicity and privacy interests that can be invaded bymisappropriation of name or likeness. Thus, only individuals can suefor unlawful use of name or likeness, unless a human being hastransferred his or her rights to an organization. Note that companiesmay sue you for trademark infringement and unfair competition if youexploit their brand names for commercial purposes. See the Trademark section for details.

In some states, celebrities cannot sue for misappropriation ofname and likeness (on the theory that they have no privacy interest toprotect), and non-celebrities may not sue for violation of the right ofpublicity (on the theory that their personalities have no commercialvalue). The growing trend, however, is to permit both celebrities andnon-celebrities to sue for both misappropriation and violation of theright of publicity, as long as they can establish the relevant kind ofharm.

You cannot invade the privacy of a dead person, so yougenerally cannot be sued for misappropriation of the name or likenessof a dead person, unless the misappropriation took place before theperson in question died. However, in many states the right of publicitysurvives after death, so you could be sued for violating the publicityrights of a dead person. This is most likely to come up with deadcelebrities.

Elements of a Claim for Unlawful Use of Name or Likeness

A plaintiff must establish three elements to hold someone liable for unlawful use of name or likeness:

1. Use of a Protected Attribute: The plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff's name or likeness, but the law protects certain other personal attributes as well.
2. For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. Use of someone's name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff's identity and a matter of legitimate public interest.
3. No Consent: The plaintiff must establish that he or she did not give permission for the offending use.

Below, we address these elements in greater detail. Keep in mindthat misappropriation and right of publicity are state-law legalclaims, so there is some variation of the law in different states. Forstate-specific information, see State Law: Right of Publicity and Misappropriation.

Use of a Protected Attribute

A plaintiff bringing a misappropriation or right of publicity claimmust show that the defendant used attributes of his or her identitythat are protected by the law. Usually, this means showing that thedefendant used the plaintiff's name or likeness. With regard to use ofa name, it does not have to be a full or formal name, just somethingthat is sufficient to identify the plaintiff. Using a well-knownnickname can suffice. For instance, in Faegre & Benson, LLP v.Purday, 367 F. Supp. 2d 1238 (D. Minn. 2005), the court held that thedefendant had misappropriated the plaintiff's name when he used thepseudonym that the plaintiff blogged under in the domain name for awebsite. 'Likeness' refers to a visual image of the plaintiff, whetherin a photograph, drawing, caricature, or other visual presentation. Thevisual image need not precisely reproduce the plaintiff's appearance,or even show his or her face, so long as it is enough to evoke theplaintiff's identity in the eyes of the public.

The law protects other personal attributes or aspects ofidentity from unauthorized use as well. For example, courts have heldthat use of a celebrity's voice can violate the right of publicity.See, e.g., Midler v. Ford Motor Co.,849 F.2d 460 (9th Cir. 1988). One court held a defendant liable forusing the slogan 'Here's Johnny' as

Why Can't Movies Use Real Money