Gerdes Law provides preventative legal counsel to help clients avoid claims alleging violations of publicity or privacy rights and defamation. By carefully examining a film, television or literary property before it is distributed to the public, Ted Gerdes, principal of the firm, can identify potential problems that could give rise to a claim and is also available to provide guidance before you begin a project. Ted can also help clients acquire all necessary rights or adjust the work, where necessary.
Right of Publicity
Many states have passed laws giving individuals a greater right to control how their names, likenesses, images, voices, and signatures are used commercially than is available under the existing common case law. Known as the right of publicity, this means an individual's image generally cannot be used on a product, advertisement, book cover, or in a project without permission, or unless the use is protected by the First Amendment.
Because many celebrities' personalities remain valuable after their death, some states extend the right of publicity to include a certain period after the person's death. For example, California affords right of publicity protection for 70 years after death, while New York's right of publicity extends from its Civil Rights statute and ends at death. The right of publicity is primarily a state law matter, although the federal Lanham Act has also been used to prevent the use of someone's personality in a false or misleading advertisement or to suggest endorsement.
Article Alert: For a more detailed discussion on this topic, read the attached article, "The Unbearable Likeness of Being: Recent Court Decisions Highlight the Tensions between Entrepreneurs' First Amendment Rights and Celebrities' Right of Publicity" which was originally published in the May 2002 edition of Los Angeles Lawyer.
One of the keys to use of an individual's likeness is to understand the murky area between commercial use and permissible use. The advise of an attorney experienced in this area is invaluable.
Where publicity rights give people the right to control the commercial value of their likeness, privacy rights allow people to protect their reputations, feelings, or keep their personality private. This includes disclosing private facts, showing the person in a false light, intruding into the person's privacy, and misappropriating a person's name or likeness, discussed above. One of the distinctions between privacy and defamation, discussed below, is truth is a defense to a claim for defamation, but with the disclosure of private facts, it is the disclosure itself that is the violation, even if the statements are accurate. With false light privacy, the use of a photograph of a couple in a public place in a story about spring romance can be newsworthy and not a violation the right of privacy, but when the same photograph is used with a caption or a narration about divorce, adultery or sexually transmitted disease, it can be.
The method of gathering the information can also be an intrusion into someone's privacy. It is best to avoid obtaining information by trespassing, planting microphones or cameras in someone's home, using long lenses to capture people through their windows, and other similarly voyeuristic information-gathering techniques. However, if you believe it is necessary to take this approach to get an important story, get experienced legal advise before you do.
Defamation is an intentional false communication, either written or spoken, that harms a person's reputation in some way. For biography authors and filmmakers, the most important protection from defamation claims is that the depictions of real individuals and statements made are truthful, although the truth can often be elusive and difficult to pin down. While producing a project that could include potentially damaging statements, it is important to retain records and sources of information and verify as many of the statements as possible. Review of these records by an attorney experienced in this area will often be required prior to distribution or in order to obtain E&O Insurance for the project. Statements and facts not corroborated may require changes in your project or result in exclusions on your E&O Insurance policy.
The First Amendment generally allows use of a person's name or image in news reporting and commentary. For example, a movie review blog can use the name of a film's star, or a documentary film can contain details about a person's private life. The problems are more likely to arise in the gray area between obvious news reporting or commentary and blatantly using a celebrity's personality on a product or in an advertisement.
Just because a project is a work of non-fiction, such as a biography, documentary, or docudrama based in fact does not mean that it is safe to use anyone's image or say anything about a specific person without getting permission or providing compensation. With any project that may have First Amendment, defamation, or right of privacy or publicity concerns, you want to be proactive. Finding out that a change must be made after your book nears publication or your film is locked can be devastating and will be expensive to fix. A better practice is to work with an attorney, versed in these issues, at earlier stages of the creative process. Making changes to an early draft of a manuscript or a screenplay or a "rough cut" of a documentary will be much easier and less costly then at a later date.
Through the clearance & vetting process, Ted Gerdes can identify potential problems, advise you on how to adjust a project to avoid them, and obtain the necessary permission from subjects wherever possible.
Regardless of the nature of your project, if you are using the names, likenesses, personalities, images of people, disclosing private information, or making statements of fact, it is critical to have your work cleared by an attorney with expertise in this area of law. Ted Gerdes can guide you through the legal maze. To discuss protection of rights your project and your clearance needs, contact Gerdes Law today.