Summary
Louisiana House Bill 377 would create a right of publicity for the life of the person plus 70 years postmortem. The right allows the person to control the use of his or her name, voice, signature, photograph, image, or likeness in commercial speech.
A section provides a statutory exemption to the right for non-commercial speech. However, there is an exception to that section of the bill, so that the right of publicity applies to digital replicas, even in expressive works, if they are a substitute for “a performance by a professional actor, singer, dancer, musician, or athlete.”
There is another exception to the exemption for use if it is “so directly connected to” a product, article, or good “as to constitute an act of advertising” of the product, article, or good, whatever that means. Both of these exceptions are confusing and undermine the clarity of protections in the bill for expressive works by creating a carve-out that allows the right to be enforced against expressive works.
Status
The bill was defeated in a House vote.
Action
On April 16, 2019, Media Coalition submitted a memo in opposition to the bill to the House Committee on Civil Law and Procedure.
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)
While it is important to prevent the exploitation of an individual’s identity, any legislation that does so 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, to inform, or both.
An explicit exemption for non-commercial uses of speech is essential to protect expressive works. Without such a clear, unambiguous protection to the right of publicity:
Creators are vulnerable to the burden and expense of lawsuits that target their exercise of First Amendment rights. The right of publicity is a legal morass, and courts have done little to clarify the law. Ambiguous protections in right of publicity legislation open the doors to lawsuits against books, movies, and other media that are brought by a person, his or her heirs, or their estate when they are unhappy with their portrayal in the book, movie, article, or performance.
The threat of lawsuits will have a substantial chilling effect on constitutionally protected speech, even if the speaker is likely to be ultimately vindicated. This threat is not hypothetical; the number of right of publicity claims targeting expressive works has risen in recent years, with pernicious effects on the exercise of free speech.
Without strong statutory protections, a publisher or producer would have to consider the cost of litigation when deciding to publish a critical biography or to produce a hard-hitting documentary about important public figures such as Johnny Cash, J. Edgar Hoover, Steve Jobs, Richard Nixon, Mark Zuckerberg, or Truman Capote — all of whom were a subject of a recent biographical movie. Such a lawsuit could take years to decide and cost hundreds of thousands of dollars or more. Faced with the mere threat of costly and prolonged litigation can prompt self-censorship by producers and distributors of biographies, historical fiction, documentary, and other important discussions.
This risk is particularly compounded by the broad jurisdictional reach of the legislation. If enacted, the Lousiana right of publicity would apply to any act or event that occurs in the state. As a result, any book that is sold or movie that is exhibited in the state can give rise to a claim. It would allow plaintiffs to sue for damages in Louisiana, even if none of the parties is a resident or citizen of the state.
A similar bill was introduced in Louisiana in 2017. That bill died when the legislature adjourned without taking final action.
History
On March 29, 2019, H.B. 377 was pre-filed and referred to the House Committee on Civil Law and Procedure.
On April 16, 2019, Media Coalition submitted a memo in opposition to the bill to the House Committee on Civil Law and Procedure.
On April 30, 2019, the bill was reported out of the committee with some amendments. It was scheduled for a floor debate on May 8, 2019.
On May 8, 2019, the House voted on the bill. It failed to pass, 45 to 46.