By Keith Jaasma. Courtesy of The University of Texas School of Law, Texas Intellectual Property Law Journal.
Since the United States Court of Appeals for the Second Circuit in 1953 in Haelan Laboratories v. Topps Chewing Gum coined the term “right of publicity” to describe the right of individuals to control the use of their name and likenesses for commercial and other valuable purposes, more than half the states in the U.S. have granted rights of publicity to individuals through either the common law or by stat-ute. Texas has done both, establishing a right of publicity for living individuals through the common law tort of misappropriation of the name or likeness of an-other, and providing a right of publicity for deceased individuals under chapter 26 of the Texas Property Code.
Other states, especially California, have expanded the right of publicity to protect not only the literal names and likenesses of individuals, but also distinctive singing voices, catchphrases associated with individuals, nicknames, and other items associated with those individuals. Texas and federal courts have largely re-lied on these states’ decisions and the Restatement of Torts in defining Texas right of publicity law. This article discusses the elements of a right of publicity claim for both living and deceased individuals under Texas law, as well as issues regarding damages and attorneys’ fees, federal preemption, and sovereign immunity.
In addition to detailing the current state of Texas law, this article suggests that the right of publicity should not be extended to business entities, that courts should be flexible in considering damages claims based on right of publicity violations, and that the right of publicity for the deceased terminates on the fiftieth anniversary of that individual’s death given the Texas Property Code’s clear statement that names or likenesses of individuals may be used for “any purpose” fifty years after that person’s death . . . download full article below.
Article originally appears in the Texas Intellectual Property Law Journal. Volume 18: 123-181, Fall 2009.