This page covers legal information specific to the State of Michigan. 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.
Although no state appellate court in Michigan has yet explicitly recognized a common law right of publicity, the U.S. Court of Appeals for the Sixth Circuit has opined that such a right would be recognized under Michigan law. In addition, Michigan's state appellate courts have recognized comparable protection in the nature of a property right under its "appropriation" tort. The state has no corresponding statute.
Publications and political organizations concerned about infringing on a plaintiff's right of publicity should note that state appellate courts have interpreted the First Amendment to protect a broad range of speech from appropriation claims. For more detail, consult the First Amendment section below.
What is protected?
The Sixth Circuit has suggested that Michigan would recognize a right of publicity to protect a person's ‘identity' in addition to their name and likeness. It would therefore be possible to violate Michigan's common law right of publicity without employing a person's photo or name. In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the U.S. Court of Appeals for the Sixth Circuit held that the use of an identifying catchphrase ("Here's Johnny") by a portable toilet company was enough to constitute an appropriation of Johnny Carson's identity under Michigan law. In fact, the court in Carson noted that the use of Johnny Carson's full name, John William Carson, would not have infringed on his right of publicity as it is distinct from his identity as celebrity.
In Battaglieri v. Mackinac Ctr. for Pub. Policy, 261 Mich. App. 296 (2004), the Court of Appeals of Michigan explained that under Michigan's tort of appropriation, "any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another."
What constitutes a violation of the common law right of publicity?
The U.S. Court of Appeals for the Sixth Circuit has suggested that Michigan would use a two part test to determine whether or not a violation of the right of publicity has occurred, in which the plaintiff must demonstrate:
- "A pecuniary interest in her identity"
- "That her identity has been commercially exploited by a defendant"
Parks v. LaFace Records, 329 F.3d 437, 460 (6th Cir. 2003). In Parks, civil rights hero Rosa Parks brought suit against the rap group Outkast for using her name in a song title. The court held that her claim passed both prongs of the test, because she had used her name in the past for promotional purposes, and because Outkast used her name to sell records.
It is unclear how meaningful the requirement of the first prong is. Some cases suggest it may bar a non-celebrity from bringing suit. In Edwards v. Church of God in Christ, No. 220348, 2002 WL 393577 (Mich. App. 2002), the Court of Appeals of Michigan held that "no cognizable tort for negligent misappropriation of an unknown singer's voice exists in Michigan." The scope of this holding is ambiguous, but it at least raises the possibility that a plaintiff's fame may be a pre-requisite to recovery. In Carson, similarly, the Sixth Circuit Court of Appeals focused on Johnny Carson's status as a celebrity, and noted that it was the basis for the pecuniary value of his identity, explaining that "a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity."
On the other hand, the very act of commercial exploitation may be sufficient to prove a plaintiff's pecuniary interest in their identity, meaning that satisfying the second prong of the test satisfies the first. In Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. App. 2009), a model sued a website for publishing her photo and sending it to a magazine without permission. The Court of Appeals of Michigan held that the act of publishing and sending the photo indicated that the model's identity had value, although it also acknowledged that her history as a dancer and model further supported the contention.
Parks and Carson demonstrate that the second prong does not require the defendant to sell or license the name for profit. Simply attaching the name to a product can constitute commercial exploitation.
Rights of the Deceased
The U.S. Court of Appeals for the Sixth Circuit recognizes Michigan's right of publicity as a property right as opposed to a dignitary right, which means that the right survives the death of the person. Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 325 (6th Cir. 2001). In Herman Miller, furniture manufacturer Herman Miller partnered with famous design Charles Eames to create a line of distinctive chairs. After Eames died, the Eames estate contractually assigned Eames's right of publicity to Miller. A rival furniture company, Palazzetti, tried to use the Eames name to sell its own version of the chair, claiming that Eames's right of publicity vanished on his death. The court disagreed, and held that the right of publicity still existed even after the designer himself died.
The decision in Herman Miller cites cases from other jurisdictions noting that the right of publicity is assignable to others. The case does not specify how long the right of publicity extends after death, nor does it appear that subsequent cases in Michigan have addressed this question. One can waive the right of publicity by signing a release. Hauf v. Life Extension Found., 454 Fed. Appx. 425, 431 (6th Cir. 2011).
First Amendment Defenses
First Amendment defenses have been historically recognized in Michigan as a limitation on a plaintiff's ability to bring a claim for appropriation or right of publicity. In Pallas v. Crowley, Milner & Co., 33 N.W.2d 911 (Mich. 1948), an early case that does not specifically discuss rights of publicity, the Supreme Court of Michigan held that a model had a cause of action against an advertiser for using her photograph without permission. Significantly, the Pallas opinion noted that the publication was for advertising and not news reporting, suggesting that the latter would not infringe on a right of publicity.
More recent state appellate cases suggest that a broad array of publications is thus protected from appropriation claims. In Battaglieri, a union leader claimed that a think tank had appropriated his identity by using his name and quote in its fundraising letters. The Court of Appeals of Michigan held that the fundraising letters were protected by the First Amendment because they contained information about public policy, the leader's name was only mentioned in the context of such policy, and the quote itself was made at a press conference. In Bowens v. Aftermath Entm't, No. 250984, 2005 WL 900603 (Mich. App. 2005), a group of city officials sued a group of musicians for publishing footage of a meeting between the two parties, claiming appropriation. The footage, depicting a dispute about the content of a particular live performance, was released as an extra on a popular DVD anthologizing the tour. The Court of Appeals of Michigan held that because the dispute was reported in the media, and because the plaintiffs in their capacity as public officials had a "real relationship" to the dispute, the musicians were protected by the First Amendment. The defendant's commercial interest in the sales of DVD did not prevent them from asserting their rights under the First Amendment. In each case, the opinion is careful to tie the plaintiff's identity to the matter of public interest.
The U.S. Court of Appeals for the Sixth Circuit similarly recognizes a First Amendment defense to right of publicity claims. In Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001), individuals depicted in a mini-series about the band The Temptations claimed that NBC had infringed on their right of publicity. The court held that "that the use of plaintiffs' fictionalized likenesses in a work protected by the First Amendment and the advertizing incidental to such uses" would be protected from claims for right of publicity.
However, such defenses are not always successful. In Parks the court explained that "we must conduct another balancing of interests -- Parks' property right in her own name versus the freedom of artistic expression." Ultimately the court held that the song title "Rosa Parks" did not necessarily merit First Amendment protection, as a jury could find that it was too far removed from the content of the song.
Damages for right of publicity action can go up to a defendant's profits from the use of the name, plus costs. The court can also enjoin the defendant from further use of the name. Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104, 105 (6th Cir. 1987). However, if the plaintiff does not present evidence of financial harm, they may not be able to recover damages, even if they can enjoin the defendant from future use of their identity. Andretti v. Borla Performance Indus., 426 F.3d 824, 831 (6th Cir. 2005).
A plaintiff cannot receive punitive damages in Michigan unless authorized by statute. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 765 (2004). As there is no Michigan statute addressing a right of publicity or appropriation, punitive damages are not available for such claims.
Statute of limitations
Although no Michigan court has addressed the issue given the unsettled nature of the right of publicity in Michigan, it is likely that a right of publicity claim in Michigan would be subject to Michigan's general three-year statute of limitations for personal injury actions. Mich. Comp. Laws 600.5805(10).