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Arizona Court of Appeals Recognizes Right of Publicity While Protecting Free Speech in Precedent Setting Case

Categories: Appellate, Intellectual Property, News Release

Right of Publicity & Free Speech

For the first time ever, an Arizona state court has recognized that individuals enjoy a right of publicity that protects them from the unauthorized use of their name or likeness for commercial or trade purposes. In its April 24, 2014 decision in Reynolds v. Reynolds, the Arizona Court of Appeals recognized the right of publicity and determined that right survives the individual's death and may be brought by the individual's heirs.  In doing so, Arizona has followed the direction of California courts and departed from the holdings of New York courts, which currently hold that a right of publicity is not survivable. 

Expressive Use Vs. Commercial Use

Importantly, the Arizona Court of Appeals differentiated between commercial use and expressive use; protecting the First Amendment rights of authors. In doing so, the Court struck an important balance. It is clearly a violation of the right of publicity to feature someone's photograph on a cereal box or a can of soup without their permission. However, it is not a violation of the right of publicity to write an unauthorized biography about someone. The former is a purely commercial use while in the latter example, free speech considerations protect the author's right of expression over the subject's right of publicity. 

Right of Publicity

The Court of Appeals also determined that everyone has a right of publicity and the claim is not limited to those who are famous or who have otherwise exploited their own name or likeness for commercial gain. This is an important consideration for those in the marketing industry who must ensure that individuals visible in photographs or videos used for commercials, print advertisements, or other marketing materials have signed proper releases permitting use of their likeness.            

Impact of Reynolds v. Reynolds

The Reynolds v. Reynolds decision provides guidance to authors, photographers, marketing professionals and even bloggers as to when permission is needed before using someone's name or likeness. It is finally clear in Arizona that if you want to use the name or likeness of anyone, famous or not, dead or alive, on a product or in an advertisement to sell a product or service, you should first get permission. However, if you want to make a movie or write a book, article or blog mentioning someone else or even about someone else and the purpose of the work is to express an idea, you have a First Amendment right to do so without violating rights of publicity even if you don't have permission.   It does not matter that you commercialize your book, article or blog as long as it is expressive in nature.  

There is still a grey area though. In today's market, it is not unusual for marketing professionals to disguise an advertisement as an article and it is not unusual to write an article for the purpose of selling a product or service.  Because this is a new case and there has not been much interpretation yet, it is a good idea to check with your attorney if you are writing something that uses someone else's name or photograph and your writing falls between expressive and commercial.         

About the author: Maria Crimi Speth is a shareholder and intellectual property attorney at the Phoenix law firm of Jaburg & Wilk PC.  She is the department head of the intellectual property group and has expertise in copyright law, trademark law, and Internet law.  She focuses on litigation involving intellectual property rights and First Amendment rights. Ms. Speth is the author of the book, Protect Your Writings:  A Legal Guide for Authors. Ms. Speth represented the prevailing party in the Reynolds v. Reynolds case.