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Friday, March 24, 2006

Taylor Hicks and Celebrity Merchandising

Information covering Taylor Hicks and the controversy over websites marketing his image and name on products without authorization is not widely released on the internet as of yet. Fansites and forums with promotion angles regarding Hicks are discovering they are in violation of certain laws.

This is a link regarding the merchandising of products, including t-shirts, coffee cups, mouse pads and pins bearing the likeness of celebrities or anyone else for that matter without their permission. http://www.wipo.int/sme/en/documents/ip_photography.htm

Well known on-line storefront, CafePress.com had this paragraph within their terms and conditions. Sellers are monitored regarding the products submitted for sale to ensure privacy rights are not violated.
Right of Publicity
What is Right of Publicity? The Right of Publicity makes it unlawful to use another's identity for commercial advantage without permission. A person's "identity" includes, for example, his look, voice, name, nickname, professional name, and other distinctive characteristics. For example, the Right of Publicity prohibits you using the picture of a celebrity without authorization on your merchandise. CafePress.com

Then there exists this law...

Parody Law
Reprinted with the permission of Bell, Boyd & Lloyd LLC. www.bellboyd.com
California's right of publicity statute provides:Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person's prior consent . . . shall be liable for any damages sustained by the person or persons injured . . .

(legal terminology includes 'injured' as being a condition wherein images used for profit by another, without the permission of the person whose image is being utilized without gaining profit or granting consent)

Cal. Civil Code § 3344(a) (West 1999). Under this provision, one may not knowingly use the photograph of another for commercial use without the permission of the subject, regardless of who owns the photograph. The same rules apply for using the name, voice, signature or likeness of another. The statute provides an exception for using another's name, voice, etc. for news, public affairs, sports broadcasts or political campaigns. See id. § 3344(d).
A party damaged by a violation of the statute may sue for injunctive relief and recover the greater of actual damages, including profits from the unauthorized use, or $750, plus punitive damages and attorneys' fees and costs. California's common law also provides for a right of publicity that is broader than the statutory right. The elements of a common law right to publicity claim are:

defendant's use of the plaintiff's identity;
appropriation of plaintiff's name or likeness to defendant's advantage, commercial or otherwise;
lack of consent; and
resulting injury.

So the fact stands that the sites previously marketing Hicks' name or Hicks' products with his image or likeness are being stopped. (You might have a 'collector item' on your hands if you already own any of these products.) A few sites have had contact from Hick's representatives leaning on them to immediately retract/alter their marketing resources.

I don't really think it was Taylor Hicks that initiated or called for these proceedings, but more than likely, his P.R. reps through American Idol that have intervened. He is big for the American Idol franchise, and they will make certain that the only profits being made off of Taylor Hicks are their own.

Holding the law to its true interpretation, just using photographs of Hicks on our blogs and websites in some instances could be interpreted as being in violation as well. One "out" for us blogging schmos - especially on a little 'spot like mine; no way are we (I) reaping in any profits of any kind; and Hicks' is receiving free props and publicity. So to hawkers of Taylor Hicks products, Beware, the AI5 Patrol is watching...

Groove on Soulman.

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