Hello:
It has been a while since I posted on this blog. I have been extremely busy working, writing, and speaking on Intellectual Property issues in New Media. No excuse for neglecting this space, but I hope to post here more often.
I have been writing quite a few articles for Black Web 2.0 and recently I wrote an article on the Right to Privacy and Right to Publicity Law. Specifically, I discussed how this law affects bloggers who feature and write about celebrities. Below is the article in full text. Also, please visit www.blackweb20.com to see more articles I have written about legal issues in new media.
50 Cent Sues WorldStarHipHop For Unlawfully Using His Image. Bloggers Take Note!
Rapper 50 Cent is suing the popular website WorldStarHipHop.com for using his image/likeness without his permission. Basically, the website used the rapper’s photo on its home page…like a banner. 50 cent claims the site’s use of his image resulted in increased traffic for the site and the public perception that 50 cent was affiliated with site due to his image prominently placed on WorldStarHipHop.com’s home page.
Do blogs, websites, or online magazines have to get permission to use every celebrity’s image or likeness before posting images of that celebrity? Well it depends on for what purpose the site uses the celebrity’s image.
The use of one’s image or likeness is covered under the Right to Publicity law. This law drives from the Right to Privacy. There are four basic Rights to Privacy:
1. Protection from unreasonable intrusion upon the seclusion of another. For example a home or a car,
2. Protection from appropriation of a person’s name or likeness (Right to Publicity). For example using a person’s name or image on a product or service without their permission,
3. Protection from publication of private facts. For example, income tax data, family quarrels, medical treatment, school records, etc.,
4. Protection from publication of information that places a person in a false light.
Prosser, Restatement 2nd of Torts.
The Right to Publicity is triggered where commercial speech is involved, i.e, when a company has used a celebrity’s “name, likeness, or voice” in connection with a product, thereby creating a false and misleading impression that the celebrity is endorsing the product. See, e.g., Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983).
In 50 cent case, he claims WorldStarHipHop.com used his image like a banner ad, therefore created the false impression that he was affiliated with the site. The use of his image resulted in increased traffic to the site and therefore increased ad dollars. If 50 cents claims are proven to be true, WorldStarHipHop.com will have to compensate 50 cents for using his image to endorse their product, i.e., their website.
But there are instances when a website can use a celebrity’s image without their permission. Under the First Amendment exception to the Right of Publicity rule, if the image is used in connection with reporting a newsworthy article that is a matter of public interest, then the site does not have to get the celebrity’s permission to use their image or likeness. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2001); see also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1182-83 (C.D. Cal. 2002).
For example, when a gossip blog reports breaking news that X celebrity was in an altercation or was caught drinking and driving, use of the celebrity’s image without their permission is permissible. However, if a gossip blog simply has images of celebrities on its site as a banner or as part of the site’s graphics, use of the celebrity’s image is not permissible without first obtaining the permission of the celebrity. In this instance, the site is using the celebrity’s image to promote their blog or site.
Bloggers and websites that report on celebrity news should take note and be very careful when using celebrity images. If the use of the celebrity’s image is not associated with breaking news or “newsworthy”, ALWAYS get permission.
