Draft01 - Copyright Law > Topic 2A Duration: 10 minutes To begin => [Dial-up | Cable modem or faster]

Topic 2 - A. Fixation: Copyright alternatives, adjacent regimes


1. Right of Publicity/Privacy

NY Civil Rights Law § 50. Right of privacy.

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

§ 51. Action for injunction and for damages.

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person`s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.


An interesting contemporary right of publicity case (under Ohio law) involves a suit by ETW Corp. (the TW is for Tiger Woods) against an art publisher, Jireh Publishing. Jireh has offered a limited edition of prints, based on a painting of the golfer. For more details see the amicus brief filed with the Sixth Circuit U.S. Court of Appeals by a group of law professors in the case.

2. Unfair Competition and Trademark

Lanham Act, 15 U.S.C. 1125. False designations of origin and false descriptions forbidden

(a) Civil action.

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -- (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

3. Public Performance Piracy

NY Penal Law 275.15 Manufacture or sale of an unauthorized recording of a performance in the second degree.

A person commits the crime of manufacture or sale of an unauthorized recording of a performance in the second degree when he knowingly, and without the consent of the performer, records or fixes or causes to be recorded or fixed on a recording a performance, with the intent to sell or rent or cause to be sold or rented such recording, or with the intent to use such recording to promote the sale of any product; or when he knowingly possesses, transports or advertises, for purposes of sale, resale or rental or sells, resells, rents or offers for rental, sale or resale, any recording that the person knows has been produced in violation of this section.

Manufacture or sale of an unauthorized recording of a performance in the second degree is a class A misdemeanor.

4. Contract, License, and Other Claims Based on Relationship

See ¶ 21 of the Hemingway decision.