Massachusetts Right of Publicity Law

This page covers legal information specific to the State of Massachusetts. 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.

Massachusetts codifies its Right of Publicity law at Chapter 214, § 3A of the General Laws. You should first familiarize yourself with that statute. Massachusetts does not recognize a separate common law right of publicity.

What is protected?

Section 3A protects a person's "name, portrait or picture". There is a paucity of cases specifying the precise limits of this phrase; in other contexts, however, courts have acknowledged that the Massachusetts statute is very similar to New York's. See, e.g., Old Colony Donuts, Inc. v. American Broadcasting Companies, Inc., 368 F. Supp. 785, 788-89 (D. Mass. 1974). Thus, New York cases interpreting these terms may be persuasive to Massachusetts courts.

Rights of deceased persons

Massachusetts has no appellate case law on this point. However, at least one Massachusetts trial court has ruled that the right of publicity only applies to living persons. Hanna v. Ken's Foods, Inc., 2007 WL 1695311, at *1 n. 4 (Mass. App. Ct., June 12, 2007) (unpublished opinion) (noting that the trial court dismissed plaintiff's § 3A claim on living-persons ground that plaintiff was not a living person, and that the issue was not appealed).

What constitutes a violation?

To violate § 3A, a use of a person's identity must be:

  • within Massachusetts; 
  • for advertising or trade purposes; and 
  • without written consent.

The statute focuses on a person's "interest in not having the commercial value of one's name, portrait or picture appropriated for the benefit of another." Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749 (1980). Thus, courts applying § 3A look to whether the defendant's actions exploited the value of the plaintiff's identity.

Section 3A contains some specific exceptions. One gives added protection to professional photographers: photographers may exhibit their photographs at their "establishment," until the subject of the photograph provides written notice. If the photographer continues to display the subject's photograph after receiving such notice, the photographer may be liable for violating § 3A. Other statutory exceptions include the right to use an author's name in connection with her work, and the right to use a person's identity to sell goods, if that person uses her identity in connection with the manufacture or distribution of those goods.

In practice, the primary limit on the right of publicity is known as "incidental use." If the defendant's use of a person's identity is only incidental to other purposes, and not intended to profit off of the person's "reputation, prestige, or other value," there is no violation of § 3A. Id. In Tropeano, the seminal Massachusetts Supreme Judicial Court case establishing the "incidental use" standard, the defendant magazine used a picture of several people (including the plaintiff) to illustrate a news story. The story was not an advertisement of any kind, and there was no evidence that the defendants intended to profit from the plaintiff's identity (notably, the plaintiff was not identified in the photograph). Thus, the use of the plaintiff's photo was "incidental," regardless of the magazine's profit-seeking motive.

A number of trial courts, both state and federal, have used Tropeano's incidental use test to dismiss claims that arise from various news stories and other non-advertising purposes. See, e.g., Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004), aff'd sub nom., Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005) (dismissing § 3A claim arising from photo & caption in book); Morrell v. Forbes, Inc., 603 F. Supp. 1305 (D. Mass. 1985) (dismissing § 3A claim arising from photo in news magazine).

In deciding how broadly to construe the "advertising or trade" language, Massachusetts courts have been skeptical of analogies to New York case law. Massachusetts's statute does not apply to "peace of mind"-type privacy harms; the focus is strictly on the commercial value of a person's identity, and whether the defendant has appropriated that value. This is arguably distinct from New York's statute, which is codified under a broader "right of privacy." Tropeano, 379 Mass. at 748-49. Thus, while (as mentioned above) New York cases may be persuasive to Massachusetts courts in some circumstances (such as defining "name, portrait or picture"), New York analogies for interpreting "advertising or trade" may be less useful.

Damages

Section 3A provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. If a plaintiff is able to show the necessary commercial use of her identity (see above), the damage award may include compensation for "mental distress." See Polich v. Rafferty, 1997 WL 89152, at *10 (Mass. Super. Ct., February 10, 1997) (unreported).

Section 3A also states that if the defendant "knowingly" used the plaintiff's protected identity, the trial court has discretion to award treble damages.

Statute of limitations

Right of publicity claims in Massachusetts are subject to a three-year statute of limitations. Mass. Gen. Laws c. 260, § 2A.

 

Last updated on May 3rd, 2013

   
 
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