Does Arizona recognize a “Right of Publicity.”
Attorney Steve Vondran chimes in on this important intellectual property law topic. Many states, like California, have a statutory right of publicity that protects all persons and their name, image, and likeness, and gives to each person a right to control the commercial exploitation of their identity (or the right NOT to exploit their publicity value). The California statute is contained in the California Civil Code Section 3344. But what about Arizona? Does Arizona have a similar law?
Well the basic answer is NO, there is no statute that recognizes or defines the right of publicity in Arizona. However, there is a general understanding with the Arizona Courts that there is a “common law” (judge made law) legal right that will protect a person and their commercial identity being misappropriated for commercial gain of another.
Arizona Case law on point
A key case discusses the right of publicity in Arizona is the Pooley v. Nat'l Hole-In-One Ass'n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000). This is the HOLE IN ONE GOLF COURSE CASE. Plaintiff Don Pooley (“Plaintiff”) is a professional golfer who made a “hole-in-one” for $1,000,000 at the 1986 Bay Hill Classic golf tournament. Here is a video of Pooley's amazing hole in one shot.
Defendant, the National Hole-in-One Association (“Defendant”), produced a videotape of the hole-in-one for a promotion and used Plaintiff's name in the videotape footage. Plaintiff alleges that Defendant used the videotape footage without Plaintiff's consent and sued Defendant for invading his right of publicity.
Reynolds v. Reynolds
In 2014 an Arizona right of publicity came down in Reynolds v. Reynolds. This case recognized a right of publicity under the case law. Some holdings from the case include the following:
“Violation of the right of publicity, also termed “appropriation,” originally was one of the four varieties of invasion of privacy. See Restatement (Second) of Torts §§ 652A, 652C (1977); William L. Prosser, Privacy, 48 Cal. L.Rev. 383, 389 (1960). Arizona long has recognized a common-law right of privacy, see Reed v. Real Detective Publ'g Co., 63 Ariz. 294, 305, 162 P.2d 133, 138 (1945), allowing claims based on each of the three other forms of invasion of privacy. See id. (publication of private facts); Hart v. Seven Resorts Inc., 190 Ariz. 272, 279, 947 P.2d 846, 853 (App.1997) (intrusion upon seclusion); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 342, 783 P.2d 781, 788 (1989) (false light). The “ right of publicity” at issue here is defined by the Restatement (Third) of Unfair Competition (“Restatement Third”) § 46 (1995) as the right to the “ commercial value of a person's identity.” Under this provision, “one who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability” for resulting damages. As the Restatement Third explains: Like the right of privacy, the right of publicity protects an individual's interest in personal dignity and autonomy. With its emphasis on commercial interests, the right of publicity also secures for plaintiffs the commercial value of their fame and prevents the unjust enrichment of others seeking to appropriate that value for themselves. The right to prohibit unauthorized commercial exploitation of one's identity allows a person to prevent harmful or excessive commercial use that may dilute the value of the identity. Although proof of deception or confusion is not an element of liability under this Section, the right of publicity indirectly affords protection against false suggestions of endorsement or sponsorship.
See in re Estate of Reynolds, 235 Ariz. 80, 81–82, 327 P.3d 213, 214–15 (Ct. App. 2014)
2. The right of publicity “is most often invoked to protect the value associated with the identity of a celebrity.” Restatement Third § 46 cmt. d. Indeed, appropriation claims typically arise out of the unauthorized use of a well-known person's name or likeness in connection with the advertising of goods or services. See, e.g., Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983); Palmer v. Schonhorn Enters., Inc., 96 N.J.Super. 72, 232 A.2d 458 (N.J.Super.Ct. Ch. Div.1967); State ex rel. Elvis Presley Int'l Mem'l Found. v. Crowell, 733 S.W.2d 89, 97 (Tenn.App.1987). But “the identity of even an unknown person may possess commercial value.” Restatement Third § 46, cmt. d (“evaluation of the relative fame of the plaintiff is more properly relevant to the determination of appropriate relief”). See Cont'l Optical Co. v. Reed, 119 Ind.App. 643, 86 N.E.2d 306, 310 (1949) (claim brought by Army optician); Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62, 75 (N.J.Super. Law Div.1967) (family searching for home to rent).
3. On its face, § 14–3110 does not refer to a claim for violation of the right of publicity. The omission is logical: The statute excepts from the general rule of survival only a handful of deeply personal claims, and, as we have stated, the right of publicity is more akin to a property right, the breach of which is measured by resulting pecuniary loss, than a personal right whose violation results in emotional injury. See Toffoloni v. LFP Publ'g Group, LLC, 572 F.3d 1201, 1205 (11th Cir.2009) (right of publicity is “characterized by an economic concern that individuals be allowed to control the use of their image in order to maximize the profit they can receive from its publication”); Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 967 (10th Cir.1996) (“right of publicity involves a cognizable property interest”); Ventura v. Titan Sports, Inc., 65 F.3d 725, 730 (8th Cir.1995) (“[T]he right of publicity differs substantially from the right to privacy…. The right to publicity protects pecuniary, not emotional, interests.”); Carson, 698 F.2d at 838 (“[T]he right of publicity vindicates the economic interests of celebrities, enabling those whose achievements have imbued their identities with pecuniary value to profit from their fame.”
4. As a property right, however, the right of publicity is “freely assignable,” and an assignment “transfers ownership to the assignee, who has standing to assert the right against others.” Restatement Third § 46 cmt. g; see Bi–Rite Enters., Inc. v. Bruce Miner Co., Inc., 757 F.2d 440, 442 (1st Cir.1985) (“As a commercial, rather than a personal right, [the right of publicity] is fully assignable.”). Consistent with that principle, we hold the right of publicity is descendible, and therefore may be enforced by a decedent's estate. Restatement Third § 46 cmt. h (majority of jurisdictions hold right of publicity is descendible, although “scope of permissible use by others may be greater in the case of post mortem publicity rights”). See, e.g., Hebrew Univ. of Jerusalem v. General Motors LLC, 878 F.Supp.2d 1021, 1031 (C.D.Cal.2012); Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Products, Inc., 250 Ga. 135, 296 S.E.2d 697, 705 (1982); Elvis Presley Int'l Mem'l Found., 733 S.W.2d at 97–98 (listing cases). Robin argues a postmortem right of publicity should exist only if the decedent exploited such a right during his or her lifetime. The Restatement rule is to the contrary. Restatement Third § 46 cmt. h (“Although commercial exploitation prior to death can be relevant in establishing the value of the appropriated identity, it should not be required as a condition of descent.”); see J. Thomas McCarthy, The Rights of Publicity and Privacy § 9:17 (“The overwhelming majority rule under either statute or common law is that the right of publicity is descendible property and has a postmortem duration which is not conditioned on lifetime exploitation.” See In re Estate of Reynolds, 235 Ariz. 80, 83, 327 P.3d 213, 216 (Ct. App. 2014)
Arizona Right of Publicity Resources
Was this case an example of one company trying to take commercial advantage of another company by using the golfer”s name, image, and likness, for his own commercial purposes without consent? The Court discussed the right of publicity as it related to this case:
The common law right of privacy provides protection against four distinct categories of invasion:
(1) intrusion upon a plaintiff's seclusion or solitude, or into his private affairs;
(2) public disclosure of embarrassing private facts about a plaintiff;
(3) publicity which places the plaintiff in a false light in the public eye; and
(4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.Eastwood v. Superior Court, 149 Cal.App.3d 409, 198 Cal.Rptr. 342, 346 (1983).
The fourth category is commonly referred to as appropriation or the right of publicity. See Restatement (Third) of Unfair Competition § 46.
Arizona has not recognized a claim for the right of publicity in common law or by statute. In absence of Arizona law to the contrary, courts follow the Restatement.Aztlan Lodge No. 1, Free and Accepted Masons of Prescott v. Ruffner, 155 Ariz. 163, 745 P.2d 611, 613 (App.1987).
The Restatement (Second) of Torts § 652 C defines the claim as follows: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” The Restatement (Third) of Unfair Competition sets out the claim independently from general tort liability. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 130, at 1013 (5th ed. 1984) (“The topic [unfair competition] is now a field in itself, and the subject so large and specialized that the American Law Institute has concluded that it is a separate field, to be excluded from the Restatement of Torts altogether.”).
Section 46 of the Restatement (Third) of Unfair Competition defines the claim of right of publicity as follows: “One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49 [injunctive and damage relief, respectively].”
The right of publicity exists in some form in twenty-seven states. Laura Lee Stapleton & Matt McMurphy, The Professional Athlete's Right of Publicity, 10 Marq. Sports L.J. 23, 31, 64 (1999). In California, to prevail on a cause of action for common law misappropriation of plaintiff's name or likeness, a plaintiff must establish:
(1) the defendant's use of the plaintiff's identity;
(2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise;
(3) lack of consent; and
(4) resulting injury. See Eastwood, 198 Cal.Rptr. at 346.
In New Jersey, the right of publicity generally applies to situations where the plaintiff's name, reputation or accomplishments are highly publicized and the defendant used that fact to his or her advantage. Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72, 232 A.2d 458, 461 (1967). Palmer cites the following instances where New York courts have found infringement: Lane v. F.W. Woolworth Co., 171 Misc. 66, 11 N.Y.S.2d 199, 200 (N.Y.Sup.Ct.1939), aff'd 256 A.D. 1065, 12 N.Y.S.2d 352 (1939) (defendant sold lockets with removable photographs of plaintiff in each one); Miller v. Madison Square Garden Corp., 176 Misc. 714, 28 N.Y.S.2d 811, 813 (N.Y.Sup.Ct.1941) (official program of sporting event contained photographs of contestants and prominent sports personalities); Jansen v. Hilo 1112*1112Packing Co., 202 Misc. 900, 118 N.Y.S.2d 162, 163 (N.Y.Sup.Ct.1952), aff'd. 282 A.D. 935, 125 N.Y.S.2d 648 (1952) (defendant inserted pictures of widely known baseball players in popcorn and chewing gum containers); Selsman v. Universal Photo Books, Inc., 18 A.D.2d 151, 238 N.Y.S.2d 686, 687 (Sup.Ct.1963) (defendant inserted a picture of actress using a camera, with an inscription giving her name, in a manual for the camera). Palmer, 232 A.2d at 461.
It seems clear to this Court that a celebrity's interest in his name and likeness is unequaled and has been recognized as such by more than half the states in this country. The Court sees no reason why a claim for invasion of the right of publicity should not be recognized in Arizona. The Court applies the elements set forth in Eastwood (infra at pp. 1111-1112) and finds that the Plaintiff adequately stated a claim against the Defendant for violation of his right of publicity.
So it does appear a Plaintiff in an Arizona Court can claim a right of publicity and assert that as a cause of action. The facts of your case need to be examined closely, as do potential defenses such as first amendment, and you may have other rights such as invasion of privacy, passing off, trademark infringement or other causes of action.
So, if you believe you have a right of publicity case that needs to be examined Call us at (877) 276-5084. Our initial consultations are free, and we may be able to take these types of cases on a full or partial contingency or hourly arrangement.