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Copyright, the First Amendment and the right of publicity

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.

Robert Barbera, who photographs celebrities, has sued pop singer Ariana Grande because she uploaded photographs of herself to Instagram that he had taken and posted online. What could be wrong with posting pictures of yourself, even if someone else created them?

After all, as we have written about extensively in this space, the right of publicity protects a person’s right to control and benefit from his or her own persona in commercial use, including name, image, signature, likeness, voice and other unique aspects of personality and presence. These issues often involve the misappropriation of the personas of widely recognizable celebrities.

A person or business that uses a person’s persona for financial gain without the person’s consent is at risk of a lawsuit for violating the celebrity’s right of publicity.

So, would Barbera’s use of Grande’s image in his photos be a violation of her right of publicity? Would her reposting them be protected by her right of publicity?

According to Forbes, Barbera allegedly owns registered copyrights in the pictures, which are the basis for his suit against Grande. The lawsuit seeks money damages for the alleged copyright infringement.

Several celebrities have recently faced lawsuits for the same behavior. In a related Forbes article about a similar suit against model Gigi Hadid, the author explains the tension between the right to publicity and a photographer’s First Amendment rights to free expression and speech as reflected in the creativity of the photo, which may be protected by copyright.

Reportedly, most cases of this nature are ending in negotiated settlement. We will continue to report on the development of the tension between protected expression in photography — especially of subjects of interest to members of the public —and a person’s right to control their own persona in commercial settings, as courts decide more cases.

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