In case you needed any more reminders that it's an election year, the internets are rife with political cartoons, caricatures, comics, and, of course, memes depicting our much beloved candidates. Have you ever wondered if such depictions are legal? No? Oh... Well, in any case, before you set off to illustrate the next great comic, consider the "right of publicity."
Many states, including Massachusetts, recognize a right of publicity. Generally, the right protects individuals against the unauthorized use of their likeness for another's commercial gain. Some states, like New York, include the right of publicity under a broader right to privacy. Here in Massachusetts, the two interests are kept separate.
Massachusetts provides a statutory right of publicity under Chapter 214, section 3A of the General Laws. Section 3A protects a person from the use of his or her "name, portrait, or picture within the commonwealth for advertising purposes or of the purpose of trade without his written consent." The statute allows a person to enforce their right of publicity by filing a civil lawsuit for injunctive relief (preventing and restraining the use) and for monetary damages. If the defendant knowingly used the plaintiff's name, portrait, or picture without authorization, the court may award the plaintiff treble (triple) damages. It's worth noting that the statute makes no distinctions or exceptions for celebrities or public figures; "any person" may assert the right.
Does this mean that you have to secure written consent any time you want to use a person's likeness in your creative work? Not necessarily (though it probably couldn't hurt). First, consider the nature of your use of the person’s name, portrait, or photo:
[T]he interest which is protected by G.L.c. 214 s. 3A is the interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another. The value of one's name, portrait or picture is not appropriated "when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity." Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749 (1980) (quoting Restatement (Second) of Torts s 652C, Comment d (1977)).
The key is that section 3A protects against the appropriation of "the commercial value" of a person's name, portrait, or picture. It isn’t a broad privacy statute – in fact, the Massachusetts Supreme Judicial Court declined to enforce section 3A broadly:
"New York courts have . . . construed [the New York right of publicity statute] to operate much more broadly . . . . Specifically, it has been held in some circumstances to authorize a remedy against the press and other communications media which publish the names, pictures, or portraits of people without their consent." We decline to apply such a broad interpretation to G.L.c. 214, s. 3A. Id. at 747.
What this means is that if the purpose of your use of the person's name or likeness isn't to advertise or peddle merchandise, then you're probably safe. In Tropeano v. Atlantic Monthly Co., the seminal case on the matter, the Supreme Judicial Court held that The Atlantic Monthly magazine's unauthorized publication of the plaintiff's photo in an article didn’t violate the statute: "The article or story involved, whether it be viewed as an effort to inform or entertain the readership, is a legitimate, noncommercial use." Id. at 751.
That all sounds fine and good, but suppose you’re a freelance illustrator and drawing satirical comics and cartoons is your business. Surely that must be considered a commercial use. Again, not necessarily: the Court further held that "The fact that the defendant is engaged in the business of publishing The Atlantic Monthly magazine for profit does not by itself transform the incidental publication of the plaintiff’s picture into an appropriation for advertising or trade purposes." Id. If I were to venture a guess, the main purpose of your comics is to entertain, not to sell a product.
Additionally, Massachusetts recognizes a "newsworthiness" defense to claims for violation of the right of publicity. The defense applies when the publication "touches upon a matter of 'legitimate public concern.'" Peckham v. New England Newspapers, Inc., 865 F. Supp. 2d 127, 130 (D. Mass. 2012). The defense is still a legal work-in-progress with loosely defined limits – "the 'line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake'" Id. at 131 – but it may be available if you find yourself in trouble.
Here are some of the things to consider before publishing a work featuring someone's name, portrait, or picture:
- Is it possible to acquire written consent?
- What is the ultimate purpose of the use of the person's name or likeness?
- Does the use have any newsworthiness?
If you have any questions about the right of publicity, please feel free to contact me!