Click here to download the Right of publicity 2020 report, published by Getting the Deal Through.

Jurisdictions covered

The following 9 jurisdictions are covered in this report:

Canada; Germany; Greece; India; Mexico; Russia; Spain; United Kingdom; United States.

Questions

The set of questions relating to the topic of right of publicity and answered by the guide for each jurisdiction covered include:

Sources of law

• • Is the right of publicity recognised?
• • What are the principal legal sources for the right of publicity?
• • How is the right enforced? Which courts have jurisdiction?
• • Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
• • What aspects of a person’s identity are protectable under the right of publicity?

Existence of right

• • What aspects of a person’s identity are protectable under the right of publicity?
• • Do individuals need to commercialise their identity to have a protectable right of publicity?
• • May a foreign citizen protect a right of publicity under the law of your jurisdiction?
• • Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?
• • Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?

Ownership of right

• • Can the right be transferred? In what circumstances?
• • Can the right be licensed? In what circumstances?
• • If the right is sold or licensed, who may sue for infringement?
• • If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?
• • Are there any actions that rights owners should take to ensure their rights are fully protected?

Infringement

• • What constitutes infringement of the right?
• • Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?
• • Is knowledge or intent to violate the right necessary for a finding of infringement?
• • Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?

Remedies

• • What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
• • Is there a time limit for seeking remedies?
• • Are attorneys’ fees and costs available? In what circumstances?
• • Are punitive damages available? If so, under what conditions?
• • Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
• • What are the measures of damages?
• • What significant judgments have recently been awarded for infringement of the right?

Litigation

• • In what forum are right of publicity infringement proceedings held?
• • Are disputed issues decided by a judge or a jury? Are damages determined by a judge or a jury?
• • How is the choice of applicable law determined?
• • To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
• • What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
• • What is the average cost and time frame for a first instance decision, for a preliminary injunction, and for appeal proceedings?