Yes.
I have addressed issues of copyright infringement in the past, but there are other causes of action you may have in this situation. There are two other claims that are applicable here – Invasion of Privacy and the Right of Publicity. Both protect a person's name, likeness and image, but there are slightly different elements required for each.
The Right of Privacy, and subsequent invasion of, was only recently recognized as a tort (personal harm) in Minnesota in 1998. It stemmed from a 1995 incident where a group of women went on a Mexico vacation. They had their vacation pictures developed at a Dilworth Wal-Mart, but received a note saying some of their photographs were not developed because of their explicit "nature." A few months later, the women discovered that some Wal-Mart employees had begun circulating their explicit photos around town. The previously undeveloped photos depicted two of the women taking a shower together.
The Minnesota Supreme Court followed suit with a majority of other states in recognizing the women could sue for an invasion of their privacy. Previously, the women would have no recourse for their claimed humiliation and embarrassment.
In the case of your band's photo, you may have a viable claim for an invasion of your privacy, specifically the appropriation of the band's image and name, without consent, for commercial benefit of the alcohol beverage company. The key element here is that you would have to allege the band suffered some emotional distress or harm, i.e., embarrassment, fear, shame. Maybe your band is a well-known "straight edge" band and being associated with a brand of alcohol has caused the band tremendous disgrace and humiliation. Or someone in the band is a recovering alcoholic and is outraged over appearing in an ad for a brand of alcohol. You could be creative with your claims in order to survive a dismissal from the other party.
The other avenue of redress here falls under a violation of your band's Right of Publicity. This is similar to the privacy right, but is broader in that it extends beyond image and likeness, to a person's signature, voice, look or anything associated with a person's overall persona. For example, most people associate Groucho Marx with his eyebrows, glasses, moustache and cigar. A drawing of just those features connects most peoples' minds with Groucho and his persona, including his distinctive voice.
The evocation of identity must remind people of a specific person. The Right of Publicity is generally considered a celebrity-based right due to the fact that famous people have the most economic interest invested in their identities. As a result, the California courts are the leader in interpreting this cause of action.
What separates this claim from invasion of privacy is that emotional damages are not required in a publicity claim. But you must be able to claim your band suffered an economic loss or hardship. In this case, the beverage company obviously thought there was some economic value associated with your band's image – enough to sell alcohol with anyway. Whether the misappropriation of your image caused you to lose money is up to the facts. If you could allege your record contract or management contract had a morals clause that prohibited the band from advertising or endorsing the use of alcohol, and you were dropped from the label or management because of the advertisement, you would have a decent argument in terms of loss of potential sales and gigs. If you already had an existing endorsement deal with another beverage brand and they dropped you as a result of the competitor's ad, you suffered another economic loss.
The Right of Publicity frequently comes up when a client wants to sample a well-known vocal. If you wanted to use an un-cleared sample of Robert Plant's scream from the beginning of "Immigrant Song," you would obviously risk being sued by the record label for copyright infringement of the sound recording. But you would also risk being sued for a violation of publicity by Plant himself because he has a right to control how is voice is used.
Minnesota lags behind in terms of ruling on these issues as they pertain to the entertainment industry for the simple fact it has only recently recognized the Right of Privacy, and it lacks the celebrities to bring Right of Publicity claims.
The information in this column is for general information purposes only. It is not intended to provide advice regarding a specific legal situation. Legal advice can only be obtained after consultation with a specific attorney.
E-mail your questions to:
galen@riftmagazine.com |
