By: Edwin Paillant
The right of publicity has been recognized by statute and/or case law in the majority of the 50 individual states. Publicity laws grant individuals the right to control the commercial exploitation of certain aspects of their identity, such as their name, likeness, voice, signature, image, distinctive appearance, gestures, mannerisms, photograph or other indicia of identity or persona. See White v. Samsung Elecs. Am. Inc., 971 F.2d 1395, 1396 (9th Cir. 1992); Lohan v. Take-Two Interactive Software, Inc., 97 N.E.3d 389 (2018); Comedy III Productions, Inc. v. Gary Saderup, 21 P.3d 797 (2001); Sarver v. Chartier, 813 F. 3d 891 (2016). The realm of publicity rights in intellectual property is rather new and as such the Supreme Court has deferred to the states as how the rules should be governed. Thus, the states have differed on the following issues: (1) whether the right survives posthumously; and (2) whether the right of publicity is descendible and assignable.
The above mentioned lack of uniformity over this issue has led to only 24 states recognizing the baseline right of publicity to individuals. Of those 24 states, not all have recognized the right of publicity after death. There is a profound detriment towards individuals, primarily celebrities, for lack of a clear federal ruling. In recent years, for example, Prince’s estate has no say in whether individuals can use his likeness in advertisements because Minnesota, the place he was domiciled before his death, has refused to weigh in on this law. Compare that to California, who has a vast number of celebrities and has chosen to weigh in. Pursuant to Cal. Civ. Code § 3344.1, postmortem rights are available for seventy (70) years after death and expires after 2 years if the use becomes inactive. This favors the many celebrities that have passed that were domiciled in California when they die—Most notably Michael Jackson and Tupac Shakur. Legislation on this matter needs to be addressed as the lack of a federal rule that recognizes postmortem publicity rights with a specified period of years after the individual’s death is detrimental to the vast majority of creatives. Creatives that just so happen to be black.
By: Briana Seaton-Adams
A social movement is essentially a sustained campaign in support of a social goal which implements or prevents a change in society’s structure or values. From the Civil Rights Movement, to the waves of feminism, Black Lives Matter, and #MeToo, social movements have been integral in America’s history and progress. In 2017, Actor Alyssa Milano urged survivors of sexual assault to use the words “Me Too” on Twitter, with no idea of where it came from. In just a few weeks, the hashtag was used over 12 million times. Soon after, those two words burst into the spotlight of social media with #metoo, a hashtag promoted by Milano. Recognizing the virality of the hashtag, women of color hurriedly pointed out that the true creator of the “me too” movement was by Ms. Tarana Burke, who is black, had not received support over the years from prominent white feminists.
The USPTO has not been receptive to trademark registrations of phrases arising from social movements. The main reason for this opposition is that the purpose of a trademark is to preserve the ability of consumers to identify and distinguish a particular source of goods or services. In contrast, if the proposed trademark is merely an informational, social, political, or religious message, it fails to function as a trademark. As an example, of the 15 trademarks to register Black Lives Matter, 7 were refused, 6 are awaiting examination, and 2 were approved but are not registered (Black Lives Matter Too; Black Lives Matter To Me).
This matters because individuals and businesses seek to capitalize on the social movements they create, especially when these movements have become “viral”. Others, like 17-year-old Greta Thunberg, seek to protect their movement to prevent people who may try to use the mark for purposes not in line with what the movement stands for. While social movements are generally difficult to trademark, Sybrina Fulton, mother of slain teen Trayvon Martin, trademarked “I am Trayvon” in 2014 for a foundation in his honor which lives to this day.