Personality Rights

In the United States, the rights of publicity and privacy are based on state law. Accordingly, the degree of personality rights protection varies from state to state. Not surprisingly, celebrity-rich states such as California and New York tend to have broader legislation and case law on the subject than states like Idaho or Vermont.

In general, states that recognize the right of publicity consider it to be a property right rather than a personal right. As a result, the right of publicity often survives the death of the “personality,” meaning that just because a person is no longer living does not mean that you are free to exploit the person’s name and likeness.

Indeed, Texas is a state that recognizes the right of publicity as a property right that survives after death if the person’s “name, voice, signature, photograph, or likeness has commercial value at the time of his or her death or comes to have commercial value after that time.” (Vernon’s Texas Statutes and Codes, Property Code, Section 26.003) Texas even offers a procedure for registering a claim to a deceased individual’s publicity right. (V.T.C.A., Property Code, Section 26.006) Bear in mind that such right of publicity in Texas expires 50 years after a person’s death.

Strangely, while Texas law clearly protects a deceased individual’s publicity right, it evidently relies on the more general common law tort of misappropriation of the name or likeness of another for protection of a living individual’s publicity right.

Personality rights considerations are vital in the development of many creative projects, especially in the fields of merchandising and advertising.

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