Personality rights have developed out of common law concepts of property, trespass and intentional tort. Thus personality rights are, generally speaking, judge made law, though there are jurisdictions were some aspects of personality rights are statutory; in some jurisdiction publicity rights and privacy rights are not clearly distinguished; generally speaking the term publicity right is used. In a publicity rights case the issue to decide in is whether a significant section of the public would be misled, or misrepresented, into believing, contrary to the fact, that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products. This is done by way of the tort of passing off.
The meaning of the law is best illustrated by principal cases on the subject.
Publicity rights in common law jurisdictions
England has followed this Australian development of the law. In the Mirage Studios case [1991] FSR 145, Browne-Wilkinson, V.C., after referring to the Australian cases of Children's Television Workshop v. Woolworths (NSW) Ltd. [1981] RPC 187 and Fido Dido Inc. v. Venture Stores (Retailers) 16 IPR 365, said the law as developed in Australia is sound. There is no reason why a remedy in passing off should not cover a case where the public is misled in a relevant way as to a feature or quality of the goods sold when an action is brought by the people with whom the public associate that feature or quality. An interim injunction was granted. The first plaintiff was the owner of the copyright in the drawings of fictitious humanoid characters known as "Teenage Mutant Ninja Turtles" and part of their business was to license the reproduction of these characters on goods sold by others. The first defendant made drawings of humanoid turtles characters similar in appearance to the first plaintiff's, utilizing the concept of turtles rather than the actual drawings of Turtles.
In Hong Kong, the main case on this point is the ongoing dispute between Cantopop singer/actor Andy Lau and Hang Seng Bank over the allegedly unauthorised use of Lau's image on credit cards.
Only in Jamaica in a 2002 case involving the estate of Bob Marley has it been found anywhere in a common law jurisprudence that a personality right may be transferred by disposition.
In the United States, publicity rights under federal law are seen as an offshoot of the Lanham Act. Unlike other common law jurisdictions, where personality rights (publicity and privacy) are extinguished with the death of an individual, personality rights in the United States are a chattel, which are capable of being conveyed by testimentary disposition. A recent example is John Dillinger's rights of publicity, as seen in Ken Phillips, Mark Phillips and Dillinger’s, Inc. v. Jeffrey G Scalf, a 2003 Indiana Court of Appeals case. The operators of Dillinger’s restaurant are alleged to have violated the right of publicity of Jeffrey G. Scalf, the great-nephew of the 1930s gangster and bank robber John Dillinger, in using without authorisation Dillinger’s name, image, and likeness in connection with the restaurant. In March 2003, eight members of the cast of “The Sopranos” alleged that electronics retailer Best Buy used their images in newspaper ads without permission. In September 2002, Tom Cruise and Nicole Kidman sued luxury goods company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.
In the July 2003 case of Tiger Woods v. Jireh Publishing, however, a painting of the famous golfer Tiger Woods and others is protected by the US Constitution's First Amendment and treads neither on golfer's trade marks or publicity rights. Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit.
These few examples illustrate that litigation on rights of publicity in the United States is very active, rapidly changing this area of the law.
In contrast with common law jurisdictions most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate someone's privacy to speak about his medicial condition, if he were the President of France, one can speak about his public life and even a famous person such as Princess Carloline of Monaco is entitled to live her private life without the interference of paparazzi with telescoping lenses.
Unlike most common law jurisdiction the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmerched by such publication.
In France personality rights are protected under article 9 of the French civil code. While publicly known facts and images of public figures are not generally protected, use of someones image or personal history has been held actionable under French law. The most famous case in recent history is perhaps the publication of the book on Francois Mitterand called Le Grand Secret in which Mitterand's doctor published a book that not only revealed private facts about Mr. Mitterand's life, but also revealed medical confidences protected by patient client privilege.
In Germany personality rights are protected under the German civil code.
The concepts of an "absolute person of contemporary history" which allow the depiction of individuals who are part history but still gives them some protection of their rights of privacy outside the public sphere.
A succinct statement of the German law can be found in the following judicial statement from the Marlene Dietrich case BGH 1 ZR 49/97 (1 December 1999),
Translated by Raymond Youngs (Copyright: Professor Basil Markesinis, ‘Always on the Same Path’ and ‘Essays on Foreign Law and Comparative Methodology’, Hart Publishing 2001, reproduced here as fair use of a legal decision)(1):
There are certain provisions on rights in the new Civil Code of Quebec that enshrines the right to privacy as an attribute of personality. This right is set forth Article 3.
In the People's Republic of China, rights of personality are established by statute.
Personality rights in the United States
Personality rights in civil law
Personality rights in France
Personality rights in Germany
Personality rights in Quebec
The chapter in the new Code dealing with respect of reputation and privacy defines the invasion of privacy in article 36: Personality rights in the People's Republic of China
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