1. California recognizes the common law right of publicity but provides no explicit statutory protection for it.
2. The right of publicity always dies with the individual.
3. In recent decisions, the First Amendment’s protection of freedom of speech usually trumps the right of publicity.
4. In <i>Laws v. Sony Music Entertainment, Inc.</i>, the Ninth Circuit held that the First Amendment preempts a right of publicity claim.
5. Since the Copyright Act was passed, most courts have found that it preempts right of publicity claims.
6. When an individual asserts a right of publicity in a licensed work, federal preemption can exist only if the work is deemed “fixed in a tangible medium.”
7. To establish a common law claim of the right of publicity, in addition to showing a resulting injury a plaintiff must prove: the defendant’s use of his or her identity, the appropriation of his or her name or likeness to some advantage, and the lack of plaintiff’s consent.
8. In <i>Fleet v. CBS, Inc.</i>, a California appellate court held that films, because they are based on fleeting dramatic performances, cannot obtain copyright protection.
9. The Ninth Circuit has consistently rejected the argument that the right of publicity can protect an individual singer’s vocal style.
10. Courts have upheld right-of-publicity claims based on soundalikes, even when the defendant obtained a valid license to use the underlying composition.
11. The court in Laws held that use of an actual vocal performance by a copyright licensee may also constitute unauthorized appropriation of the singer’s “persona.”
12. Courts have held that the use of “transformative elements” may strengthen the First Amendment’s competing interest to defeat a right-of-publicity claim.
13. Misuse of an individual’s “persona” cannot be the subject of a right-to-publicity claim, because it is amorphous and cannot be fixed tangibly.
14. Both copyright and the right of publicity serve to protect the same thing: an individual’s investment in his or her artistic labors.
15. The California court in <i>Fleet v. CBS, Inc.</i> held that an actor’s rights in a film performance are similar to the rights he or she maintains in a still picture taken and misappropriated for another person’s use.
16. In the <i>Fleet</i> decision, the court opined that an actor can protect against use of a dramatic work such as a film performance by retaining the copyright.
17. In <i>Toney v. L’Oreal USA, Inc.</i>, the court rejected a right-of-publicity claim for the alleged misuse of an image in a print advertisement, holding that the model’s identity was legally analogous to a “work of authorship.”
18. In <i>Hoffman v. Capital Cities/ABC, Inc.</i>, the Ninth Circuit rejected a traditional First Amendment analysis in finding that computer alterations of film stills of actor Dustin Hoffman’s character in <i>Tootsie</i> violated Hoffman’s right of publicity.
19. In <i>C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P.</i>, a Missouri district court affirmed the right of a fantasy baseball league to use players’ names and playing records, noting that no impermissible appropriation of likeness was involved.