Yakub Hazzard: Your Right of Publicity
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Attorney Yakkub Hazzard (Robins, Kaplan, Miller & Ciresi) explains how publicity rights work and are enforced by law. This is one of the best overviews on how the system protects each and every individual's visual rights. This is information that every professional athlete should have been given by their League, their Union and/or their agent. NOT! Retired football players have had their rights consistently hijacked by the NFL and are now suing the League and NFL Films to recover their rights, royalties and damages. This presentation was given at the 2013 Independent Football Veterans Conference in Las Vegas May 3 - 5, 2013 and can be viewed at DavePear.com.
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Yakub Hazzard: Your Right of Publicity
- 1. Who Owns You By Yakub Hazzard Co-Chair Entertainment & Media Group Robins, Kaplan, Miller & Ciresi L.L.P. 1 Celebrating 75 Years of Providing National Legal Solutions
- 3. WHO AM I • Co- Chair of Entertainment and Media Group • Practicing Law Since 1990, primarily in entertainment field • Representative clients include Estates of Ray Charles and Sammy Davis Jr., Snoop, Jamie Foxx, Weezer among others • Most Important I am the son of….. 3
- 4. A Former Professional Athlete • Walt Hazzard 4
- 5. Doctrines Protecting “Publicity” Interests Trademark Common Law Right of “Identity” Publicity 5 Statutory Right of Publicity “name, voice, signatures, Photograph, or likeness • Living persons • Deceased persons
- 6. Right of Publicity 6 • Creature of State Law
- 7. List of States with Common Law (Judge-Made) Publicity Rights • Alabama • Arizona • California • Connecticut • Florida • Georgia • Hawaii • Illinois • Kentucky • Michigan • Minnesota • Missouri • New Hampshire • New Jersey • Ohio • Pennsylvania • South Carolina • Texas • Utah • West Virginia • Wisconsin 7 At least 21 States in total have expressly recognized the right of publicity:
- 8. COMMON LAW RIGHT OF PUBLICITY • Elements: 1) Defendant’s use of plaintiff’s identity; 2) The appropriation of plaintiff’s name or likeness to defendant’s advantage or otherwise; 3) Lack of consent: and 4) Resulting injury. • See Eastwood v. Superior Court, 149 Cal.App.3d 409 (1983); White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) 8
- 9. States with Right of Publicity Statutes • California • Florida • Indiana • Kentucky • Massachusetts • Nebraska • Nevada • New York • Ohio • Pennsylvania • Rhode Island • Tennessee • Texas • Utah • Virginia • Washington • Wisconsin 9
- 10. STATUTORY RIGHT OF PUBLICITY • Cal. Civil Code §3344 – Any person who knowingly uses another’s name, voice, signature, photograph or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, goods or services without such person’s prior consent shall be liable for any damages sustained. 10
- 11. States That Recognize Rights Of Publicity For Deceased Persons • California • Connecticut • Florida • Georgia • Illinois • Indiana • Kentucky • Michigan • Nebraska • Nevada • New Jersey • Ohio • Oklahoma • Pennsylvania • South Carolina • Tennessee • Texas • Utah • Virginia • Washington 11
- 12. WHAT YOU CAN GET FOR A VIOLATION 1) Actual Damages 2) Profits or Unjust Enrichment 3) Attorneys’ Fees and Costs (under statutes that allow them) 4) Punitive Damages 12
- 13. DEFENSES 1) News Accounts/Commentary 2) Expressive Artistic Works 3) Transformative Uses 4) Life Stories 13 FIRST AMENDMENT PROTECTIONS
- 14. EXAMPLES OF CASES INVOLVING ATHLETES 14
- 15. 71 71 Winston 15 Motsenbacher v. R.J. Reynolds Tobacco Co. • Use of photo of car in TV commercial • Motsenbacher not recognizable • Claim allowed to go to jury
- 16. 16 Montana v. San Jose Mercury News, Inc. • Paper included poster of newspaper accounts of 49ers two SuperBowl wins • Newspaper wins – newsworthy just like original story
- 17. Abdul Jabbar v. General Motors Corp. 17 • GM ran ad including trivia question, the answer to which was LEW ALCINDER • Case allowed to go to jury
- 18. Gionfriddo v. Major League Baseball 18 • Defendants used retired baseball players’ publicity rights and career statistical information, including video clips of plaintiffs playing. • Court found that First Amendment noncommercial speech conveying historical information about plaintiffs’ careers trumped plaintiffs’ publicity rights.
- 19. Image Size Issue Date Issue Size Issue Price Current Retail 19 ½ x 25 ½ 4/98 250 700.00 $1,200.00 Jireh Publishing Online Store 19 • Court found that use was transformative and entitled to 1st Amendment Protection
- 20. 2 cases, 1 game, opposite results: • Keller v. EA Sports, Federal Court in Los Angeles • Court rejects transformative first amendment defense; rules in favor of athletes • Hart v. EA Sports, Federal Court in New Jersey • Court accepts transformative first amendment defense; rules against athletes 20
- 21. QUESTIONS • But not about Dryer v. NFL • That’s tomorrow 21