This page covers legal information specific to the State of Texas. 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 Texas protects against unauthorized uses of a person's name or likeness for commercial purposes. Texas has two systems of Right of Publicity law: a statutory posthumous right, and a common law right.
Texas codifies its statutory Right of Publicity at Title 4, Chapter 26 of the Property Code. You should first familiarize yourself with that statute. Texas has not distinguished its common law right of publicity from misappropriation, using those concepts interchangeably. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999) ("The tort of misappropriation of one's name or likeness is generally referred to as the ‘Right of Publicity.'").
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
Texas's statutory Right of Publicity is a property right that protects a person's right in his or her name and likeness after his or her death. The statute applies to anyone who died on or after January 1, 1937, whose identity has commercial value at or after the time of his or her death. Tex. Prop. Code Ann. § 26.003(2). The Right of Publicity lasts for 50 years after the death of the individual. Tex. Prop. Code Ann. §§ 26.003(1), 26.012(d).
Texas's statute, Texas Property Code, T. 4, Ch. 26, known as the "Buddy Holly Bill," protects a person's:
- photograph, or
The term "name" applies only to the "actual or assumed name used by an individual which, when used in conjunction with other information, is intended to identify a particular person." Tex. Prop. Code Ann. § 26.001.
The term "photograph" includes still or moving pictures or reproductions of an individual in which a viewer could "reasonably determine" the individual's identity with the naked eye. Tex. Prop. Code Ann. § 26.001; see also Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D. Tex. 1985).
The term likeness has not been explicitly defined, but this category includes pictures, drawings, and the use of a singer's voice. It does not include accounts of general incidents from one's life or one's life story, especially if they are fictionalized. See Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); see also O'Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. Dec. 19, 2003).
Who Can Exercise the Statutory Right of Publicity
The Right of Publicity is a transferable, descendible property right. Tex. Prop. Code Ann. §§ 26.004-.005. Because the right is freely transferable in whole or part, only an individual who owns more than half may exercise that right and have standing to sue for infringement. Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009). The right can be transferred before or after death by contract, trust, or testamentary documents. Tex. Prop. Code Ann. § 26.004. If the Right of Publicity has not been transferred before or upon death, it vests in the individual's spouse and children or grandchildren. Tex. Prop. Code Ann. § 26.005. In addition, if the Right of Publicity does not vest by transfer or operation of law within a year of the individual's death, it is terminated. Tex. Prop. Code Ann. § 26.010.
As in California, to exercise this Right of Publicity within the first year of the individual's death, the holder must register the property right claim with Texas's Secretary of State. Tex. Prop. Code Ann. §§ 26.006-.008. After a year has passed, the owner may exercise the Right of Publicity whether or not the property right claim is registered. Tex. Prop. Code Ann. § 26.009. Registered claims constitute prima facie evidence of a "valid claim to a property right" that will generally prevail over a conflicting, unregistered claim. Tex. Prop. Code Ann. § 26.007.
What Constitutes a Statutory Violation
Under Texas's statute, a person may not, without the written consent of the property right holder, use a deceased individual's name, voice, signature, photograph, or likeness, "in connection with products, merchandise, or goods; or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services." Tex. Prop. Code Ann. § 26.011.
The Texas statute does not provide for a specific test for identifying an unauthorized use associated with the Right of Publicity, though courts have often applied the common law test discussed below.
The Texas statute also provides an exception for media use including:
- a play, book, film, radio program, or television program;
- a magazine or newspaper article;
- material that is primarily of political or newsworthy value;
- single and original works of fine art; or
- an advertisement for the above uses.
Tex Prop. Code Ann. § 26.012; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).
THE COMMON LAW RIGHTWhat the Common Law Right Protects
Texas common law recognizes a right of publicity that protects the name or likeness of living persons (in contrast to the statutory right, which arises after death). Treated more as a privacy right than property right, this common law right of publicity has not been distinguished from misappropriation. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); see also Brown v. Ames, 201 F.3d 654 (5th Cir. 2000); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001).
This right protects an individual's "name or likeness," which has been interpreted as an individual's "identity." See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). Texas courts have interpreted this in a similar manner to the statutory right, with the same limitation on the use of one's life story. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009). Like the statute, the common law intends to protect the value associated with a name or identity rather than the name per se. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999).
What Constitutes a Violation of the Common Law Right
Texas state courts and the Fifth Circuit have articulated a traditional three-prong test for misappropriation. These common law elements include:
- Did the defendant appropriate the plaintiff's name or likeness for its value rather than incidentally or for a newsworthy purpose?
- Can the plaintiff be identified from the publication?
- Did the defendant receive an advantage or benefit as a result of the appropriation?
See, e.g., Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). If the answer to all three questions is yes, then there has been an unauthorized use of an individual's name or likeness.
It is sufficient to satisfy the third prong of this test if the defendant's use of the individual's name likely led to some benefit, commonly commercial, that the defendant would otherwise not have received. The plaintiff generally does not need to prove that the defendant actually made a profit from the use, though the benefit cannot be purely incidental. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); Topheavy Studios, Inc. v. Doe, 33 Media L. Rep. 2192, 2005 WL 1940159 (Tex. App. Aug. 11, 2005).
For claims brought under Texas's statutory Right of Publicity, the statute provides for the following damages:
- the amount of damages the person who owns the property right sustained as a result of the unauthorized use or $2,500, whichever is greater;
- the amount of any profits from the unauthorized use that are attributable to that use (established by a showing of the gross revenue attributable to the unauthorized use minus any expenses that the defendant may prove);
- the amount of any exemplary damages that may be awarded; and
- reasonable attorney's fees and expenses and court costs incurred in recovering the damages and profits established by this section
Tex. Prop. Code Ann. § 26.013.
A plaintiff may recover general damages for a right of publicity/misappropriation claim, which may include claims for mental and physical pain and suffering. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980). Special damages and punitive damages may be recovered in exemplary and/or intentional cases, such as when the plaintiff's endorsement has been sold on the open market rather than used without authorization by the defendant alone. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980); see also Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997).
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 mentioned above, the Texas statute also contains internal protections for speech by providing exceptions for art, books, uses of political or newsworthy value, and more. Tex Prop. Code Ann. § 26.012. Accordingly, courts often rely upon the statutory safe harbor rather than address the First Amendment defenses directly. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).
The First Amendment is more often applied in common law right of publicity cases brought by living individuals, given the lack of statutory exemptions. For example, in Busch v. Viacom, the court ruled that a fake endorsement as part of a news satire program that made use of a video clip in the public domain was a protected use of the plaintiff's name and likeness under the First Amendment's protection of parody. Busch v. Viacom, 477 F. Supp. 2d 764 (N.D. Tex. 2007).
Texas's statute also provides for a defense to a Right of Publicity claim if the user "has acted in reliance on the results of a probate proceeding governing the estate of the deceased personality in question." Tex Prop. Code Ann. § 26.015; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009); Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997).
In addition, the property right holder's consent to the use of an individual's name or likeness bars recovery, though this may depend on the scope and form of the consent. See King v. Ames, 1997 WL 86416 (N.D. Tex Feb. 18, 1997); Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975). For example, one case was remanded to determine whether an athlete's consent to use of his name and likeness in an advertisement for a college football program extended to his likeness portrayed in a Coca-Cola advertisement included in that football program. See Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975).
The common law right of publicity claim is likely subject to Texas' general two-year statute of limitations for personal injury actions. Whitehurst, 2009 WL 3052663 at *5 (citing Tex. Civ. Prac & Rem. Code § 16.003(a)). Although no case has yet addressed the limitations period applicable to the statutory right, it is likely that it would also be subject to the limitations period in Tex. Civ. Prac & Rem. Code § 16.003(a) as an injury to a property right.