Celebrities like athletes have a valuable asset in their persona, which can continue to make them money even after they retire. The right of publicity protects their economic interest in their name, while the right to privacy protects against intrusion and embarrassment. These rights help protect athletes from others using their identity for profit without permission. This article explores how these rights apply to sports figures and how they are protected under Florida law. In 1907, inventor Thomas Edison sued a company for using his name and picture on a pain relief formula he had developed. The court ruled in favor of Edison, saying that a person’s name and likeness are their own property and cannot be used without permission. This case was one of the earliest to establish the right of individuals to control the use of their own name and image. Before 1953, famous people couldn’t stop others from using their image to advertise products, even if they didn’t want to be associated with those products. But in 1953, a court ruled that famous people have the right to control how their image is used to sell things. This new right is called the “right of publicity” and it’s different from the right to privacy. The tort of appropriation can be split into two rights: the right of publicity and privacy. The right of privacy, as discussed in a famous 1890 article by Louis Brandeis and Samuel Warren, is about protecting individual privacy from gossip and intrusion. On the other hand, the right of publicity, discussed by Melville Nimmer in a later article, is about preventing unjust enrichment from the unauthorized use of a person’s identity. Nimmer’s test for infringement is whether the person’s identity can be identified in the work, and if not, there is no case for infringement. If someone uses your name or image without your permission to benefit themselves, and you can be easily recognized in the use, you can take legal action against them. The law doesn’t give a specific list of things that are protected, because then people would just find new ways to use your identity without permission. Instead, the court looks at each situation individually to see if it suggests your personal identity. An advertiser recreated a photo of a baseball player and used it in an ad without his permission, which was found to violate his right to control his own image. The court also found that even if a person’s face isn’t shown, they can still be identified by other distinctive features, like their race car or their name. A basketball player also sued to protect his former name in a car commercial. Kareem Abdul-Jabbar went to court over the use of his name by General Motors and also a running back for the Miami Dolphins. In the first case, the court ruled in his favor, saying that GM had tried to use his name to promote their car. In the second case, a settlement was reached so the football player would only use the name ‘Abdul’ for publicity. The law says that unless someone uses your exact name in a way that causes harm, you can’t stop them. But if a news source uses a picture of a player for a news story, that’s generally allowed. The San Jose Mercury News used Joe Montana’s image on their front page after the 49ers won the Super Bowl. They later sold the front page as a poster. Joe Montana sued the newspaper for using his image without permission. The court said the newspaper could use the image as long as they weren’t claiming Montana endorsed them. This means that the media can’t use an athlete’s image for their own commercial gain without permission, but they can use it for self-promotion. It’s also important to know the difference between reporting a story and giving a detailed account of a game so that it stays as news. The U.S. Supreme Court said that the news can’t always show a performer’s whole act without permission, because it could hurt the performer’s ability to make money. This means news organizations can only show parts of a performance unless they get permission. This rule helps protect the performer’s rights and ability to make a living. Once someone buys a product with copyrighted images, they can usually resell it without infringing on the copyright. But if they use the images to make a new product, that might not be allowed. So you can sell your baseball trading cups, but you can’t use the images to make a giant wall clock and sell that. In Florida, there’s a law that says you can’t use someone’s name, picture, or likeness for commercial purposes without their permission. If someone does this, the person or their family can take legal action and get money for any harm it caused. There have been some court cases about this law, and it’s important because it can apply to things like TV, books, and even the internet. Overall, it’s a flexible law that can adapt to new ways of using someone’s image for money. The law deals with how people’s images and personas are used for advertising. It’s meant to stop companies from using someone’s image without permission to sell their products. This idea started back in 1890 and has evolved to include things like voice and likeness. If someone’s image is used without permission, they can sue for money to make up for any harm caused. Basically, when a person becomes famous, they may not have as much privacy as others. This is because the more well-known someone is, the more control they have over how their image is used. This idea has been around for a long time. It started with a court case in 1953, where it was decided that a person has the right to control how their picture is used. This right is considered a type of property that can be given to someone else. This idea was first discussed in a famous article from 1890, which talked about how the media likes to use private information about public figures to make money. Over the years, there have been more court cases that have helped define and protect this right to control how a person’s image is used. For example, a former baseball player sued because a company used his name without permission, and the court decided in his favor. So, if someone tries to use a famous person’s name or image without permission, they could be breaking the law. These are court cases about using someone’s image or identity without their permission. One case involved a car’s distinctive design being used in a race without permission, and another case involved a celebrity’s image being used in a magazine without permission. Both cases highlight the importance of getting permission before using someone’s identity or image for any purpose. Zacchini v. Scripps-Howard Broadcasting Co. was a court case where a TV station broadcast a performer’s act without his permission. The performer sued and the Supreme Court ruled in his favor, saying his right to control his own performance was more important than the station’s freedom of speech. This would apply to any performance that’s broadcast without the performer’s okay, unless they’ve already given up their rights. Another case, Allison v. Vintage Sports Plaques, dealt with baseball cards mounted on plaques. The court said it’s okay to use the cards as long as it’s clear people aren’t buying the plaques just for the cards. There’s also a Florida law that gives people control over how their name and picture are used for commercial purposes. The court ruled that a sports bar violated a law by intercepting satellite signals for football games and showing them to paying customers. In another case, a widow claimed harm from a book and movie that referred to her deceased husband as a “reappearing ghost.” Brian M. Rowland, a lawyer with the firm Milam & Howard, wrote this column with the help of law professor Nancy Hogshead. This column is from the Entertainment, Arts and Sports Law Section.
Source: https://www.floridabar.org/the-florida-bar-journal/an-athletes-right-of-publicity/
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