Can an athlete’s right of publicity trump your copyright in a video? This is an interesting question because: (1) you own the copyright in the video when you capture an athlete’s image, but (2) the athlete owns another right generally called “right of publicity”.
So which right is controlling, your copyright or his/her right of publicity? Let’s look at a hypothetical involving pro Skater Paul Rodriguez. The answers may surprise you.
Digital Rights Management by Nimia
Paul Rodriguez is a 30 year old pro skateboarder from Tarzana, CA. P-Rod won numerous gold medal’s at Summer X Games and is sponsored by Nike among other brands. John Doe is a professional cinematographer and runs a production company called The Clover. John films P-Rod at Belvedere Skatepark in East LA and publishes the video on Vimeo. John does not have a model release from P-Rod.
1. Is John in trouble?
No. The Copyright Act is a federal law and Section 102 of the Act defines the subject matter of copyright as “original works of authorship fixed in any tangible medium of expression”, including “pictorial” works. Right of publicity statute[1] is a state law and is pre-empted in this case by John’s copyright. See Maloney v. T3Media, Inc.
A few weeks later, Mountain Dew creative director Jamie Faith views the video and wants to use it for an upcoming Mountain Dew commercial. Jamie contacts John and asks to license the video for $5,000. John agrees and receives payment from Mountain Dew and sends them the video. Soon after, Mountain Dew uses the video in a 30-second commercial that is broadcasted on national TV.
2. Is John in trouble now?
No, John is not in trouble, Mountain Dew is. P-Rod’s right of publicity protects against unauthorized uses of his likeness for “commercial purposes”. The meaning of commercial purposes is the use of ones likeness to promote or sell other products or services. John’s act of licensing a video is not considered a “commercial purpose” because the act of licensing is not promoting or selling a product or service. Thus, John is not liable to P-Rod for licensing or selling a video of P-Rod. Mountain Dew, the end commercial user of the video, is liable to P-Rod.
3. Is Mountain Dew in trouble?
Yes. P-Rod can file a lawsuit against Mountain Dew under California’s right of publicity statutes because Mountain Dew is commercially exploiting P-Rod’s likeness to sell more cans of Mountain Dew. Mountain Dew could change the end use of the video and may be ok, see eg. editorial vs commercial end use.
A real life example of commercial exploitation is Woody Allen vs American Apparel. In 2007 Woody Allen sued American Apparel under right of publicity claim, see Allen v. American Apparel, case number 08-cv-03179, U.S. District Court for the Southern District of New York. The case involved two billboards that American Apparel put up in May 2007 in New York and Los Angeles. They featured Woody Allen, dressed as an Orthodox Jew in a still photo taken from his 1977 movie Annie Hall. The billboards contained a single line of text in Yiddish declaring Allen “the High Rabbi.” Allen sued the company for $10 million, claiming the billboards were put up “in total disregard of…his exclusive property rights” and that they falsely implied that he “sponsors, endorses and is associated” with American Apparel. American Apparel settled the case before trial by agreeing to pay Allen $5 million.
In summary, there is a critical distinction between the commercial transaction for a video, itself, and a commercial transaction where the video is used to promote or sell products or services.
Nimia requires model/talent releases for all video footage available for “commercial” license under the Boutiq, RF Premium, and RF Multi-A categories.
If you’d like to talk to an attorney about video rights and ownership, or other legal issues surrounding video production, contact [email protected] and we can set up a short phone call.
By accessing and reading this blog, you acknowledge and understand that no attorney-client relationship has been formed and you further acknowledge and understand that this blog is not intended to constitute legal advice. Legal advice and counsel requires a fact-specific analysis of your particular issues, and you should thus obtain legal advice directly and individually from an attorney licensed to practice in your jurisdiction, if appropriate.
[1] California Civil Code §3344(a) provides that “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any matter, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent… shall be liable for any damages sustained by the person or persons injured as a result thereof.”
