Legal Issues With Fan Fiction - Right of Publicity

Right of Publicity

Many countries, and some U.S. States, have laws governing rights of publicity. In the United States, rights of publicity are governed by state statutes and state common law, and thus vary from state to state. As a general matter, the right of publicity grants a right to famous persons to control the commercial use of their "name, image and likeness," and sometimes extends to one’s broader identity or persona. The case of White v. Samsung provides an example of the right of publicity protecting a celebrity’s persona even when her name and likeness were not used: Samsung created an ad that pictured a robot in a blond wig and a red dress, in a pose that evoked Vanna White’s work on Wheel of Fortune. White prevailed under California law on the theory that although Samsung had not used her name or likeness. Samsung had used a recognizable depiction of her persona without permission for their commercial gain. Arguably, celebrities whose names, images, likenesses or personas are used in real person fiction, have the right to assert claims against fanfiction authors based on rights of publicity.

To date, though, no recorded right of publicity suits have been brought regarding noncommercial fan fiction about real persons. This may be, in part, because most states’ right of publicity laws only apply to uses for commercial gain. But despite the ruling in White, courts have shown hesitation in other suits to shut down even commercialized artistic pursuits based on the right of publicity. Some courts have relied heavily on Circuit Judge Konzinski's strong dissent from the White decision in order to deny a Right of Publicity claim. Others have relied directly on the First Amendment. In ETW v. Jireh, the U.S. Court of Appeals for the Sixth Circuit rejected a right of publicity claim brought by Tiger Woods against an artist who depicted Woods and other golf legends, holding that the transformative nature of the work exempted it from right of publicity liability under the First Amendment. In contrast, in Parks v. LaFace, the U.S. Court of Appeals for the Sixth Circuit held that the Outkast song “Rosa Parks” violated the civil rights icon’s right of publicity because it was not sufficiently transformative. The court explained that the use of a name or likeness is not transformative for right of publicity purposes when it “is used solely to attract attention to a work that is not related to the identified person.” Based on these cases, it is not clear that a court would be willing to abridge free speech by holding that fictional writing about a real person constitutes a violation of that person’s right of publicity.