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When copyright protection and publicity rights are at odds

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Last time, we looked very briefly at some general points about copyright protection and its importance for authors and artists. One area where copyright protection can get dicey is with photography. While a photographer may have rights to a photograph under copyright law, the subject or subjects of the photograph also have privacy and publicity rights over their personal likenesses under state law.

Publicity rights pertain to the economic interests associated with personal images, and prevent an individual from profiting off the likeness of another, unless a release is obtained. One of the issues that can come up in this context is: whose rights take precedence when there is a conflict? 

The first thing to understand is that federal copyright law preempts, or takes precedence over, state law covering the same subject matter. Although copyright protection and publicity rights can both pertain to economic interests in personal likenesses of individuals, it hasn’t always been clear when federal copyright law takes precedence over state publicity rights law when it comes to photography. This issue is becoming increasingly important in the age of social media.  

The way courts reason through this issue is not always intuitive for one who isn’t versed in the technicalities of the law. Generally speaking, though, courts are in agreement that state publicity rights are still applicable when a photograph is clearly used for advertising or commercial purposes. When a photograph is not clearly used for these purposes, though, the publicity rights of those depicted in the photograph are a bit more precarious.

Next time, we’ll look at this issue as it came up in a recent California case, and the importance of working with an experienced attorney when disputes involving both publicity rights and copyright protection. 

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