This page covers legal information specific to the State of Indiana. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Indiana has two systems of right of publicity law: a statutory right protecting a property interest, and a common law privacy right.
Indiana codifies its statutory right of publicity in Ind. Code § 32-36-1. You should first familiarize yourself with the statute.
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
Indiana’s statutory right of publicity is found under Indiana Code Title 32, Section 36-1. The statute defines “right of publicity” as a property interest belonging to a “personality.” Under the Indiana statute, a “personality” is a living or deceased natural person (not a corporation or other legal entity) who possesses specific qualities with commercial value. Specifically, the statute protects a personality’s:
- distinctive appearance,
- gestures, and
Ind. Code § 32-36-1-6.
Indiana’s right of publicity statute protects against the use of these protected aspects “for a commercial purpose” during the personality’s lifetime and after death. The right of publicity lasts for 100 years after the death of the individual and applies to those who died before the statute’s enactment in 1994.
The statute defines “commercial purpose” as the use of an aspect of a personality’s right of publicity in any of the following ways:
- on or in connection with a product, merchandise, goods, services, or commercial activities.
- for advertising or soliciting purchases of products, merchandise, goods, services, or for promoting commercial activities.
- for the purpose of fundraising.
Ind. Code § 32-36-1-2.
The term “name” means “the actual or assumed name of a living or deceased natural person that is intended to identify the person.” Ind. Code § 32-36-1-3. As a result, the statute would apply to performers’ stage names as well as their birth names.
Who Can Exercise the Statutory Right of Publicity?
As property rights, a personality’s rights of publicity recognized under Indiana’s statute are freely transferable and descendible, in whole or in part, by:
- testamentary document, or
- operation of the applicable state laws of intestate succession.
Ind. Code § 32-36-1-16. If, after death, a personality’s rights have not been transferred by one of the above means and he or she has no survivors, any rights that have not been vested are terminated. A personality or a person to whom the recognized rights of a personality have been transferred may bring action under the statute. Ind. Code § 32-36-1-17.
What Constitutes a Statutory Violation?
The statute only applies to “an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship.” Ind. Code § 32-36-1-1. A claim for a violation can be asserted only if the alleged act or event of violation occurred after June 30, 1994. A person, partnership, firm, corporation or an unincorporated association violates Indiana’s right of publicity statute when it:
- without written consent, uses an aspect of a personality’s right of publicity for a commercial purpose in Indiana;
- creates or causes the creation in Indiana of goods, merchandise, or other materials prohibited under the statute;
- transports or causes to be transported into Indiana goods, merchandise, or other materials created or used in violation of the statute; or
- knowingly causes advertising or promotional material created or used in violation of the statute to be published, distributed, exhibited, or disseminated within Indiana.
THE COMMON LAW RIGHT
What the Common Law Right Protects
Indiana common law recognizes an invasion of privacy claim for misappropriation of an individual’s name or likeness, with the Indiana Supreme Court noting that the tort focuses on an individual’s right to be left alone. Doe v. Methodist Hospital, 690 N.E.2d 681, 684 (Ind. 1997). A person’s name or likeness “embraces the concept of a person's character, which is legally protected against appropriation by another for his own use or benefit.” Felsher v. University of Evansville, 755 N.E.2d 589, 601 (Ind. 2001). For these reasons, a person can likely assert the common law right without evidence that their name, etc., has any particular commercial value.
In Doe, the Court defined the tort of invasion of privacy as the “unwarranted appropriation or exploitation of one's personality . . . in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilit[ies].” Doe, 690 N.E.2d at 685–6.
Although “an appropriation claim involves a privacy issue in the nature of a property right,” because the tort protects a right of privacy, this cause of action cannot be brought by a corporation. Felsher, 755 N.E.2d at 593–4.
What Constitutes a Violation of the Common Law Right?
Indiana courts have adopted the elements for misappropriation from the Restatement (Second) of Torts. Therefore, “an appropriation and use of a plaintiff’s name or likeness occurs whenever the defendant ‘makes use of the plaintiff's name or likeness for his own purposes or benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.’” Felsher v. University of Evansville, 727 N.E.2d 783 (Ind. Ct. App. 2000) (rev’d on other grounds) (quoting Restatement (Second) of Torts § 652I cmt. B (1977)).
In Felsher, the Indiana Supreme Court found that a professor had misappropriated the names and likenesses of the University of Evansville and university employees when he created websites and email addresses containing the plaintiffs’ names and used them “for the sole purpose of harming the [plaintiffs’] reputation[s].” 755 N.E.2d at 597. The Court held that the misappropriation was for the professor’s benefit because it “enabled him to pursue a personal vendetta.” Id. at 600. The Indiana Appeals Court has also noted that the unauthorized use of photographs of a person for commercial purposes is generally actionable as an invasion of privacy. Continental Optical Co v. Reed, 86 N.E.2d 306 (Ind. Ct. App. 1949).
For claims brought under Indiana’s statutory right of publicity, the statute provides for the following remedies, with some exceptions for news and entertainment media:
- actual damages that include profits stemming from the unauthorized use or $1,000, whichever is greater;
- treble or punitive damages for knowing, willful or intentional violations;
- reasonable attorney’s fees, costs and expenses;
- temporary or permanent injunctive relief; and
- impoundment, destruction or other disposition of violating goods or items from which violating goods could be reproduced or manufactured.
Indiana’s statute explicitly states that the above remedies are supplemental to any other remedies provided by law. Ind. Code § 32-36-1-20.
Under Indiana law, damages for an invasion of privacy claim can include, but are not confined to, “compensation for the embarrassment, humiliation and mental pain [that] a person of ordinary sensibilities would have suffered under the circumstances.” Continental Optical, 86 N.E.2d at 309. Indiana law also allows for special damages that naturally flow from the tort as well as injunctive relief. Id. at 309–10; Felsher, 755 N.E.2d at 599–601.
LIMITATIONS AND DEFENSES
Indiana’s right of publicity statute explicitly states that it “does not affect rights and privileges recognized under any other law that apply to a news reporting or an entertainment medium,” such as free speech privileges. The statute further states that its use prohibitions do not apply to uses in any of the following:
- literary works, theatrical works, musical compositions, film, radio, or television programs.
- material that has political or newsworthy value;
- original works of fine art;
- advertisements for a news reporting or an entertainment medium that uses at least part of the medium’s own past edition and does not suggest that a personality endorses that medium; or
- advertisements for the above uses.
The statute also does not apply to the use of:
- a personality’s name to truthfully identify that personality as an author or performer in a rightfully reproduced, exhibited or broadcast work;
- a protected aspect as related to public interest; or
- a protected aspect if that aspect has commercial value only because of the personality’s criminal charge or conviction.
Ind. Code § 32-36-1-1.
In Time, Inc. v. Sand Creek Partners, L.P., a federal district court stated that “[i]n general, when a person's picture is used to illustrate a non-commercial, newsworthy article, his interest in the use of his likeness or image must be evaluated in light of constitutional interests found in the First Amendment.” 825 F. Supp. 210, 212 (S.D. Ind. 1993). In Time, after broadly construing “newsworthiness,” the court held that the photographs of two widely known celebrities on their wedding way illustrated a newsworthy event of widespread public interest; therefore, the newsworthiness that the images depicted outweighed any privacy rights of the celebrities. Id. at 212–13.
The Indiana Appeals Court recognized that the right of privacy can be waived. Continental Optical, 86 N.E.2d at 309. In Continental Optical, the court noted that the right is waived by consent, either express or implied, and may also be relinquished by an individual who “enters a business or calling which gives the public a legitimate interest in his character, activities and affairs.” Id.
STATUTE OF LIMITATIONS
A common law claim for misappropriation is subject to a two-year statute of limitations. Ind. Code § 34-11-2-4 (stating that an action for injury to person or character must be brought within two years); Johnson v. Blackwell, 885 N.E.2d 25 (Ind. Ct. App. 2008) (applying a two-year statute of limitations to an invasion of privacy claim). A two-year statute of limitations would also likely apply to statutory right of publicity claims. Ind. Code § 34-11-2-4 (stating that an action for injury to personal property must be brought within two years).