Summary
Alabama House Bill 179 would create a statutory right to one’s likeness, which is defined as one’s “name, voice, signature, photograph, or likeness in any manner.” It would bar the use of any form of likeness of a person for the “defendant’s advantage, commercially or otherwise” if done without the person’s consent. A violation is a misdemeanor crime.
The person who violates the right would also be liable for actual damages or $750, whichever is greater, plus profits generated by the unauthorized use. A court can also award punitive damages and legal fees. If a member of the military is the person whose right of likeness has been violated, the damages are trebled.
There is a very limited exception to the right for use of a person’s likeness in “news, public affairs, or sports broadcast or account.” There is no exception for any other media or other type of content. Essentially, H.B. 179 creates a right of publicity that is not limited to commercial speech and has criminal sanctions, in addition to serious financial penalties.
Status
No action was taken on the bill during the 2019 legislative session, which has since adjourned. Alabama does not carryover legislation, so the bill is dead.
Action
On April 8, 2019, Media Coalition submitted a memo in opposition to the bill to the House Committee on Judiciary.
Analysis
The right of publicity protects individuals against the unauthorized use of their names, likenesses, and similar attributes in commercial speech. In this context, “commercial speech” is understood as speech that does no more than propose or invite a commercial transaction. An expressive work is non-commercial speech or use in any medium, even if sold for profit. Joseph Burstyn, Inc. v. Wilson (1952)
Since this legislation is not limited to commercial speech, it clearly violates the First Amendment. H.B. 179 would force newspapers, filmmakers, book authors, artists, and illustrators to obtain permission to use the name, likeness, voice, or other manner of likeness in any speech other than on limited subject matter. This would result in wide scale censorship of history, entertainment, cultural commentary, historic fiction, and art.
Content-based regulations are presumptively unconstitutional, unless it fits in one of the few historic exceptions to the First Amendment. Regulations of noncommercial speech outside of these historic exceptions are subject to strict scrutiny. To satisfy this test, the government must:
- Articulate a legitimate and compelling state interest;
- Prove that the restriction actually serves that interest and is “necessary” to do so; and
- Show that the restriction is the least restrictive means to achieve that interest.
It is very unlikely that there is any compelling interest that would justify forcing noncommercial speakers to obtain permission to use the name of well-known business, entertainment, and cultural figures. If the intent of the bill is to protect citizens of Alabama from commercial exploitation of their likenesses, the bill is wildly over-inclusive as it goes far beyond commercial speech to apply to artistic uses.
Even laws that are limited to commercial speech must include robust protections for the First Amendment rights of creators, producers, and distributors of expressive works that include real-life individuals’ names or likenesses, including motion pictures, television programs, books, magazine articles, music, video games and works of art. Importantly, these works enjoy full constitutional protection regardless of whether they are sold, rented, loaned, or given away, and whether they are intended to entertain or to inform (or both).
History
On March 19, 2019, H.B. 179 was introduced and referred to the House Committee on Judiciary.
On April 8, 2019, Media Coalition submitted a memo in opposition to the bill to the House Committee on Judiciary.
On May 31, 2019, the Alabama legislature adjourned its 2019 session. No further action was taken on the bill. Alabama does not carryover legislation, so the bill is dead.