Do people need your permission to write about
you?
What if they want to make a movie about you,
or a YouTube video, blog post, whatever?
Who owns your name, likeness, voice, and life
story?
Here's the answer, in four rules.
Well, two rules, one who-knows, and one piece
of advice.
Rule 1: People can write books about you,
make movies about you, or write articles about you
all without violating your so-called "right
of publicity."
That right is often defined as an exclusive
right to commercial use
of your name, likeness, voice, and other "attributes
of identity";
but it does not apply to biography, fiction,
news coverage, and so on.
The First Amendment protects people's ability
to write about others.
That's what newspapers do, both about famous
people and about ordinary ones
who happen to draw the newspaper's attention.
It's also why we see unauthorized biographies,
whether in print or on the screen,
and fiction with real characters, like Midnight
in Paris and Forrest Gump.
And that's true even though those items are
distributed for money.
So you don't really own your name or likeness
or life story,
in the sense of having exclusive rights over it.
Neither does your biographer.
No one owns it, because everyone is free to
use it,
at least when they're commenting about you and your life.
Rule 2: People generally can't use your name,
likeness, or voice in commercial advertising.
In some situations, such use can also violate
trademark law,
because consumers might be confused into thinking
you're endorsing the product.
Exception: If people are advertising books
about you or newspapers that mention you,
it's OK for them to use your name or picture
in doing so.
Such ads are treated like the underlying book
or newspaper, and are therefore allowed.
This right to prevent the use of a name or
likeness in advertising
applies not just to living people, but also
to recently dead ones.
How recent?
Depends on the state where the people were
living when they died.
Some states cover people for 50 years after
their death, some more, some less.
Rule 3: When it comes to merchandising, different
state and federal courts
have reached different results about this,
often inconsistent results.
Indeed the Missouri Supreme Court has held
that people can sue over use of their name in comic books,
though courts have consistently rejected this
theory for other kinds of books.
But this may be an outlier decision;
other judges have criticized it, and the California
Supreme Court has rejected such a lawsuit
in a comic book case very similar to the Missouri
one.
It's also unsettled whether athletes' names
and statistics
can be used in the big business of sports
gaming,
whether fantasy sports leagues or sports video
games.
The Supreme Court could resolve whether and
when the First Amendment protects
such less traditional communications media
against right of publicity claims,
but the Justices haven't done that yet.
And a practical note:
Even though creators may have the right to
freely use people's names
in, say, movies  about them,
it might still be a good idea to get their
agreement, if possible.
While filmmakers and authors routinely win
right of publicity lawsuits filed against them,
there's still some risk and a lot of expense.
Safer for the creators to pay some money,
if they have it and the person is willing to take it.
Second, biographers can be liable for defamation
if they get some significant facts wrong about
a living person.
Third, working with subjects (or their heirs)
can give authors access to facts they otherwise
wouldn't know.
Fourth, getting the subject's permission can
prevent bad publicity,
and can enlist the subject into helping promote
the work.
All this might be impossible,
for instance, If a biography would be critical
of its subject,
so that the subject might refuse to cooperate.
In that case, the authors may want to stand
on their First Amendment rights—see Rule 1.
But if cooperation is possible, it's a good
idea.
Finally, all we say here has to do with American
law.
These days, much of the revenue for movies
comes from other countries—
and the rules in those countries might be
different.
Better safe than sorry, many producers and
publishers say.
So to sum up:
The First Amendment protects authors' rights
to use others' names, likenesses, and life
stories
in biographies, works of fiction, and the like,
even though such works are commercially sold.
The so-called "right of publicity" can't stop
that.
The First Amendment doesn't protect such uses
in most advertising;
there, the advertiser generally has to get
the permission of people referred to in the ad.
Courts are split on whether people's names
can be used
on T-shirts, greeting cards, in video games,
and the like.
And it's often a good idea to get the subject's
agreement anyway,
even for a movie that you might technically
be legally free to make.
This is not legal advice.
If this were legal advice, it would be followed
by a bill.
Please use responsibly.
Written by Eugene Volokh, who is an actual
real-life First Amendment law professor at UCLA.
I'm Eugene Volokh and I approve this message.
