This page covers legal information specific to the State of Pennsylvania. 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.
Generally speaking, the right of publicity in Pennsylvania protects against unauthorized uses of a person's name or likeness for commercial purposes. Pennsylvania has two systems of right of publicity law: a statutory right, and a common law right.
Pennsylvania codifies its statutory right of publicity in 42 Pa. Cons. Stat. § 8316. You should first familiarize yourself with the statute.
At common law, Pennsylvania has distinguished the right of publicity from the tort of misappropriation (called "invasion of privacy by appropriation of name or likeness"). However, it is unsettled in Pennsylvania if 42 Pa. Cons. Stat. § 8316 has absorbed the common law tort of invasion of privacy by appropriation of name or likeness. Please see below for more information on these distinctions.
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
Pennsylvania's statutory right of publicity is found under 42 Pa. Cons. Stat. § 8316. The official title of the statute is "Unauthorized Use of Name or Likeness," but it is commonly referred to as the "Right of Publicity" statute. "Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose" may bring an action for infringement. 42 Pa. Cons. Stat. § 8316.
A "natural person," as defined by the statute, is "a living person or a deceased person who was domiciled within this Commonwealth at the time of such person's death." 42 Pa. Cons. Stat. § 8316(e).
The term "name" or "likeness" is defined in the statute as any attribute of a natural person that identifies him to an ordinary, reasonable viewer or listener. These attributes include:
- A substantially similar imitation of one or more of the above
42 Pa. Cons. Stat. § 8316(e).
The term "commercial value" means a "valuable interest in a natural person's name or likeness that is developed through the investment of time, effort and money." 42 Pa. Cons. Stat. § 8316(e); see also Lewis v. Marriott Intern. Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007)(arguing that revenue figure evidence show commercial success of plaintiff's wedding packages, and this supports the claim that plaintiff's investment of time, effort and money in promoting and selling wedding packages has "commercial value").Who Can Exercise the Statutory Right of Publicity
Though it does not expressly address transferability, the statute allows other parties, including individuals, firms and corporations, to bring an action on behalf of a person whose right of publicity has been violated. A party can act on behalf of a natural person if authorized in writing by that person to license the commercial or advertising purposes of his name or likeness. 42 Pa. Cons. Stat. § 8316(b)(4).
The statute also protects a deceased person if they were domiciled within Pennsylvania when they died. 42 Pa. Cons. Stat. § 8316(a),(e). The statute recognizes a thirty year post-mortem right of publicity. 42 Pa. Cons. Stat. § 8316(c); see also Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).
The statutory post-mortem right of publicity in Pennsylvania can be enforced by:
- A person, firm, or corporation authorized in writing to license the commercial or advertising use of the natural person's name or likeness by:
- the natural person during his lifetime; or
- a will or other testamentary device.
- An executor named in a will or designated by a court;
- The decedent's surviving spouse or, if there is no surviving spouse, other heir or group of heirs who have at least a 50% interest in the decedent's estate.
42 Pa. Cons. Stat. § 8316(b)(3).
What Constitutes a Statutory Violation
The elements of a claim for violation of Pennsylvania's Right of Publicity statute are:
- The natural person's name or likeness has commercial value; and
- The name or likeness was used for any commercial or advertising purpose; and
- The name or likeness was used without written consent of the natural person or the written consent of any party authorized to give consent.
42 Pa. Cons. Stat. § 8316(a).
Under Pennsylvania's Right of Publicity statute, a natural person's name or likeness can be identified by any attribute that identifies that natural person to an ordinary, reasonable viewer or listener. 42 Pa. Cons. Stat. § 8316(e).
The law does not apply when:
- The person appears as a member of the public and is not named or otherwise identified,
- The name or likeness is associated with a news report or presentation having public interest,
- The name or likeness is an "expressive work" or "original work of fine art" [terms defined in the statute],
- The name or likeness is associated with an announcement for a commercial or advertising purpose for certain permitted uses in paragraph (2) and (3) above,
- It is associated with the identification of a natural person as the author or contributor to a written work, or the performer of a recorded performance under circumstances in which the written work or recorded performance is lawfully produced, reproduced, exhibited, or broadcast.
42 Pa. Cons. Stat. § 8316(e)(2).
The statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).
Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action (1) to enjoin the unauthorized use, and/or (2) to recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a); see also Tillery v. Leonard & Sciolla, LLP, 437 F. Supp. 2d 312 (E.D. Pa. 2006).
THE COMMON LAW RIGHTWhat the Common Law Right Protects
Pennsylvania recognizes a common law right of publicity. "The right of publicity inures to an individual who seeks to protect and control the commercial value of his name or likeness." Eagle's Eye, Inc. v. Ambler Fashion Shop, Inc., 627 F. Supp. 856, 862 (E.D. Pa. 1985). The court in Eagle's Eye called the right a "misappropriation of right of publicity," and claimed it was derived from the right of privacy, though noted it was "entirely" different from the right of privacy. Eagle's Eye at 862; see also Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007); Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3 (E.D. Pa. Mar. 2, 2007); World Wrestling Federation Entm't, Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 443 (W.D. Pa. 2003)
The common law right of publicity grants a person or a group the exclusive right to control the commercial value of his/their name and likeness. Eagle's Eye at 862. The right of publicity in Pennsylvania protects individuals and groups (e.g., musical groups) by giving them the right to control the commercial use of their inherently distinctive names and likenesses. See Brockum Co. v. Blaylock, 729 F. Supp 438, 445–46 (E.D. Pa. 1990); Apple Corps Ltd. v. Button Master, P.C.P., Inc., No. 96-5470, 1998 WL 126935, at *13 (E.D. Pa. Mar. 19, 1998); Philadelphia Orchestra Ass'n v. Walt Disney Co., 821 F. Supp. 341, 344–45 (E.D. Pa. 1993); Hogan v. A. S. Barnes & Co., 114 U.S.P.Q. 314, 230 (Pa. Com. Pl. 1957) (finding violation of right of publicity, but calling it "unfair competition under another label).
The right only applies to natural persons. Fraternal Order of Police v. The Crucifucks, No. 96-2358, 1996 WL 426709, at *2 (E.D. Pa. July 29, 1996) However, in dicta, the District Court for the Eastern District of Pennsylvania, in a case about blues singer Bessie Smith, implied (by considering who had the capacity to sue for violations after the right after Smith's death under Pennsylvania law) that there is a postmortem exclusive right to use an individual's name and likeness. See Gee v. CBS, Inc., 471 F. Supp. 600, 617 (E.D. Pa. 1979) ("In short, far from being a hollow formality, the requirement that a qualified administrator or executor sue under the survival statute reflects the heart of the statute, which is that a cause of action survives in favor of the decedent's estate.")
A corporation can own an individual or group's right of publicity, as a corporate third-party licensee. Brockum Co. v. Blaylock, 729 F. Supp. 438, 446 (E.D. Pa. 1990). The licensee has the authority to enjoin the use of the licensor's name or likeness. Nice Man Merch., Inc. v. Logocraft Ltd., No. 91-7475, 1992 WL 59133, at *5 (E.D. Pa. Mar. 18, 1992); see also Apple Corps Ltd., No 96-5470, 1998 WL 126935, at *14 (E.D. Pa. Mar. 19, 1998). Although Pennsylvania recognizes the right of publicity of a group of persons, courts have held that the common law right of publicity does not protect the trademarks and images of corporations, partnerships or similar institutions. See Apple Corps Ltd., No 96-5470, 1998 WL 126935 (E.D. Pa. Mar. 19, 1998); Eagle's Eye, Inc., 627 F. Supp. 856.
What Constitutes a Violation of the Common Law Right
To establish a violation of the right of publicity, the plaintiff must prove that the defendant is appropriating the plaintiff's valuable name or likeness, without authorization, to defendant's commercial advantage. Philadelphia Orchestra Ass'n, 821 F. Supp. at 349. In order to infringe a group's right of publicity, the name appropriated must have a secondary meaning. Id.
An allegation of commercial value may not be required, as courts apply a presumption of commercial value based on the act of a defendant's decision to use a person's identity. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3. "Inherent in the act of a defendant using a person's name ... in a commercially advantageous manner is the presumption that the identity has commercial value." Fanelle v. Lojack Co., No. 99-4292, 2000 WL 1801270, at *11 (E.D. Pa. Dec. 7, 2000).
Some courts conflate the right of publicity with the separate concept of misappropriation/invasion of privacy by appropriation of name or likeness. One distinction between the torts is that violation of the right of publicity requires an element of commercial advantage, while invasion of privacy by appropriation of name or likeness does not.
Right of Publicity vs. Invasion of Privacy by Appropriation of Name or Likeness
The Pennsylvania Supreme Court has expressly recognized a cause of action for "invasion of privacy" by "appropriation of name or likeness." See Corabi v. Curtis Publishing Co., 273 A.2d 899 (Pa. 1971), Vogel v. W. T. Grant Co., 327 A.2d 133 (Pa. 1974); Chan v. County of Lancaster, No. 10-cv-03424, 2011 WL 4478283 (E.D. Pa. Sept. 26, 2011). In addition, courts in Pennsylvania have relied upon § 652C of the Restatement (Second) of Torts for cases involving invasion of privacy by appropriation of name or likeness. AFL Phila. LLC v. Krause, 639 F. Supp. 2d 512, 529-30 (E.D. Pa. 2009).
Many courts in Pennsylvania conflate the right of publicity with misappropriation of name or likeness. But although the two torts are similar under Pennsylvania law, the "right of publicity" is not identical to "invasion of privacy by appropriation of name or likeness." One distinction is that the invasion of privacy by appropriation of name or likeness does not require the appropriation to be commercial. AFL Phila. LLC, 639 F. Supp. 2d at 531.
In 2003, the Pennsylvania legislature enacted 42 Pa. Cons. Stat. § 8316. Since then, at least one district court has stated that the cause of action for invasion of privacy by misappropriation of identity has been "subsumed" by § 8316. Facenda v. NFL Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa.2007). However, in a later decision, the same court held that it was hesitant to rule, absent guidance from the legislature or the Supreme Court of Pennsylvania, that this previously-recognized common law cause of action was subsumed by statute. Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 429 (E.D. Pa. 2007). "[A]s a matter of statutory construction, 'statutes are not presumed to make changes in the rules and principles of common law or prior existing law beyond what is expressly declared in their provisions.'" Id. Therefore, it remains unsettled whether § 8316 has superceded the tort of invasion of privacy by appropriation of name or likeness.
A federal court in Pennsylvaniahas stated that invasion of privacy by appropriation of name or likeness is a personal right created to protect one's privacy, while the right of publicity more closely resembles a property right created to protect commercial value. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3.
Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action to enjoin the unauthorized use and recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a).
We have not found any cases discussing damages or injunctive relief. There have been cases where injunctive and monetary relief has been granted, but in an award combined with awards on trademark or other claims. See Apple Corps Ltd., No 96-5470, 1998 WL 126935; Brockum Co., 729 F. Supp at 445–46.
"Damages...are intended to protect the property right of an individual to the exclusive use of his own identity, notoriety, or skill," Worthy v. Carroll, No. 02-6882, 2003 WL 25706359, at *4 (E.D. Pa. July 16, 2003).
The court in Seale v. Gramercy Pictures, 964 F.Supp. 918, 929-30 (E.D. Pa. 1997) predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Unfair Competition § 46 as its standard for the right of publicity. The Restatement (Third) of Unfair Competition § 46 defines the right of publicity as follows: "One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49 [injunctive and monetary relief]." Restatement (Third) of Unfair Competition § 46.
LIMITATIONS AND DEFENSES
All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.
As noted above, the statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).
Pennsylvania's right of publicity statute is not preempted by federal copyright law because it requires a showing of commercial value, an additional element beyond a federal copyright infringement claim. Facenda, 542 F.3d at 1027; see also 42 Pa. Cons. Stat. § 8316(a),(e).Common Law
Court have recognized several common law exceptions for the common law right of publicity, including First Amendment defenses and protection for publications about newsworthy public figures.
Federal courts have found that First Amendment considerations can outweigh enforcement of a publicity right. Seale, 949 F. Supp. at 337. The Supreme Court of Pennsylvania has held that "a public figure has no exclusive rights to his own life story" and others do not need consent or permission of the subject to write a biography of a celebrity. Corabi v. Curtis Pub. Co., 273 A.2d 899, 918 (Pa. 1971).
STATUTE OF LIMITATIONS
Though not a statute of limitations per se, under Pennsylvania's right of publicity statute the right of publicity is descendible. However no action can be commenced more than thirty years after the death of the natural person who is the subject of the dispute. 42 Pa. Cons. Stat. § 8316(c).
Depending on whether the right of publicity is treated as a property right or privacy right, it could be subject to different limitations. For example, claims of privacy are governed by a one year statute of limitation. 42 Pa. Cons. Stat. § 5523(1). Property claims have a two year statute of limitations. For example, statutory trademark claims under the Lanham Act are subject to Pennsylvania's two-year statute of limitations. See Beauty Time, Inc. v. VU Skin Systems, Inc., 118 F.3d 140, 143 (3d Cir. 1997), Guardian Life Ins. Co. of America v. American Guardian Life Assur. Co., 943 F.Supp. 509, 517 (E.D. Pa. 1996).
With respect to the common law right of publicity, the applicable statute of limitations has not been interpreted under Pennsylvania law.
There is a two year "catchall" statute of limitations that might govern the right of publicity. 42 Pa. Cons. Stat. § 5524(7). Claims of misappropriation (invasion of privacy) are governed by a one-year statute of limitations. 42 Pa. Cons. Stat. § 5523(1).