Influencing IP: How The Right Of Publicity Should Adapt to the Influencer Age

So, a lot of you have been asking … is the right of publicity in its current state working?

While the right of publicity has long been used by singers, models, and other celebrities to protect their image and brand, with the rise of social media and, more specifically, the rise of the influencer, its usage has been shifting. The ways in which someone can gain a following and recognition have been growing; simultaneously, the opportunities to exploit someone else’s image have been increasing as well. Given this changing landscape, there is a need for a federal law governing the right of publicity that expands the current state law in order to ensure efficiency in the courts and adequate protection for a burgeoning area of intellectual property (IP).

Currently, the right of publicity is vastly inconsistent within the United States. Just over half of the states recognize this unique area of IP, whether through statute or common law, and there is no uniform federal protection. The required elements vary by jurisdiction; in fact, “many of its critical elements remain either disputed or undeveloped.” Generally, right of publicity cases involve defendants using the well-known name or likeness of plaintiffs in order to create an association or appearance of sponsorship/endorsement, most commonly for a commercial benefit. The striking differences between the treatment of the right of publicity prevents clear enforcement against misappropriation. For example, Georgia only recognizes the right of publicity in protecting a person’s name and likeness, while California’s more expansive right protects name, voice, signature, photograph, and likeness. New York codified its right of publicity as part of its “Right of Privacy” statute and doesn’t recognize a separate common law right of publicity, which contrasts with Florida’s statutory right that creates a property right held by an individual. And overall, only 24 states have statutory protections, while others arrive at the same outcome via common law.

Some have argued that there is no need for a federal right of publicity due to the protections otherwise provided in the Lanham Act. However, there are instances where plaintiffs may have a claim under the right of publicity, but not under the Lanham Act. In Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the Sixth Circuit found that there was no likelihood of confusion and denied relief under the Lanham Act, but granted relief under Michigan’s state law governing the right of publicity. In that case, a toilet rental company used the phrase “Here’s Johnny”, which was closely associated with the appellant. The court found for the appellant under the right of publicity because, as a celebrity, he “had a protected pecuniary interest in the commercial exploitation of his identity.” If the appellant had been forced solely to rely on the Lanham Act, his legitimate publicity claim would have gone uncompensated.

With the rise of influencers, more and more people are finding commercial value in their likeness and personal brand. Along with that rise, appropriation of influencers’ likenesses is becoming increasingly common. Recently, PopSugar Inc. allegedly created profiles of prominent social media influencers and copied thousands of photos from their Instagram accounts without their permission, leading to a class action suit against PopSugar under federal and state law. PopSugar unsuccessfully tried to claim preemption under the federal Copyright Act; however, the court held that the state law right of publicity claims weren’t preempted because the basis was the use of the influencers’ likenesses, not the publication of the photos as creative works. If there was a federal right of publicity, there would be no basis for preemption under the Copyright Act or the Lanham Act, which would reduce unnecessary motions in cases such as PopSugar’s.

Another opportunity for misappropriation of influencers’ likenesses is the advancement of artificial intelligence (AI) and face-swapping technology. These days, it is easier than ever to create a fake simulation of a particular influencer without their knowledge or consent. “Deepfakes” are AI systems that are able to superimpose someone’s image onto existing photos and videos, creating an authentic-looking new version. Deepfakes have already emerged as an issue in the 2020 election and for traditional celebrities, so it is conceivable that deepfakes could pose a serious threat to the income of social media influencers. Regulators and lawmakers are struggling to deal with this issue and a federal right of publicity could provide help. While the First Amendment would limit a federal right of publicity law, having a uniform protection on the federal level could go a long way in helping influencers protect the commercial value in their likeness and brand.

Adopting a uniform federal law that protects the right of publicity is not a novel position ­–– in fact, there have been increasing demands for it. The rise of social media and the increasing value in the likeness and persona of non-traditional celebrities has made the issue all the more pressing. Regardless of any personal opinion one might have about the societal value of an influencer, there is demonstrative commercial value in the industry, which is enough to warrant uniform protections.