Right of Publicity Basics
This case held that a work of fiction cannot violate a plaintiff’s privacy or be defamatory.
What is Polydoros v. Twentieth Century Fox?
In White v. Samsung, the court held that using this to evoke Vanna White constituted appropriation of her identity:
What is a robot resembling her image?
The court in Cardtoons held that parody of public figures is:
What is generally protected under the First Amendment?
Hallmark attempted to defend its card under this First Amendment argument.
What is transformative use and public interest?
A cartoonist draws a comic strip featuring a superhero with a catchphrase strikingly similar to a famous athlete’s, but the character is clearly fictional. The comic is sold commercially. Could the athlete sue for right of publicity?
What is no, because parody of a fictional character is generally protected and not a market substitute for the real athlete (Cardtoons)?
The right of publicity protects against unauthorized commercial use of a person’s:
What is identity, including name, likeness, voice, and other recognizable traits?
This case recognized that parody cards depicting baseball players could be protected speech, even if they used the player’s name or likeness:
What is Cardtoons v. MLBPA?
parody is unlikely to conflict with publicity rights if it is:
What is not a market substitute for the real thing?
The rule from White v. Samsung shows that advertisers cannot evade liability by using:
What are thinly veiled imitations instead of literal likeness?
A movie portrays a character with the same name, hometown, and unusual habits as a living person, but the story is entirely fictional. The person claims invasion of privacy. Likely outcome?
What is the claim fails because a purely fictional work cannot violate privacy or be defamatory (Polydoros)?
Using a celebrity’s identity for commercial gain without consent constitutes:
What is misappropriation of the right of publicity?
A celebrity’s identity may be appropriated through non-literal means, such as:
What are catchphrases, symbols, or context?
In Hilton v. Hallmark, a jury could reasonably find the card non-transformative because it:
What is closely mimicked the celebrity’s likeness and phrase without significant alteration?
In Hilton, a greeting card using a celebrity’s likeness is actionable because it is for:
What is commercial exploitation rather than news or commentary?
A company creates a robot resembling a famous TV host to sell home appliances. The host sues for misappropriation of identity. Court’s likely ruling?
What is the host likely wins because identity can be appropriated through non-literal likeness, symbols, or context (White v. Samsung)?
In determining publicity rights, courts consider whether the use is for news, reporting, or entertainment, which may implicate this defense:
What is the public interest defense?
In determining if commercial use is actionable, courts examine if the likeness is:
What is used for commercial advantage without consent?
The First Amendment does not protect unauthorized commercial use in products that are not:
What is news, reporting, or expressive art?
Courts look at whether the use of identity causes:
What is injury or commercial harm without consent?
Hallmark releases a birthday card showing a celebrity’s face on a cartoon body using their trademarked catchphrase, claiming it’s transformative. The celebrity sues. Likely ruling?
What is the celebrity likely prevails because the card closely mimics the celebrity without adding significant creative expression, and is for commercial use (Hilton v. Hallmark)?
This test asks whether a work is protected under the First Amendment by adding significant creative elements to a celebrity’s likeness:
What is the transformative use test? (Hilton v. Hallmark)
In Polydoros, no right of publicity claim existed because the movie was:
What is a fictional work?
This case clarified that parody or humorous depiction must add creative expression to the celebrity’s identity to qualify as:
What is transformative use?
A work, like The Sandlot, is less likely to violate publicity rights because it is:
What is fictional and not intended for commercial exploitation of the individual?
An online game uses caricatures of real-life basketball players with exaggerated features and humorous nicknames. The game is sold commercially. Could the players successfully claim right of publicity violations?
What is unlikely, because parody that adds creative expression and is not a market substitute for the real players is generally protected (Cardtoons and transformative use principle)?