JURIST Guest Columnist Professor Uché Ewelukwa Ofodile of the University of Arkansas School of Law discusses answers to questions about Arkansas’ new right of publicity legislation …

The right of publicity is the right to control the commercial use of one’s identity. Over the years, a growing number of celebrities, athletes and sports personalities have brought lawsuits to enforce their right of publicity including Vanna White of “Wheel of Fortune” fame, Tom Waits, Bette Milder, Jesse “The Body” Ventura, Michael Jordan, Tiger Woods, Hulk Hogan, and Muhammed Ali. In some states, the right of publicity extends beyond the grave and has been exercised on behalf of dead personalities such as Elvis Presley and Jimi Hendrix. In the United States (U.S.), a growing number of states have adopted right of publicity statutes (e.g. California, Indiana, and Illinois) and a few more are considering adopting similar statutes. When seven-time Grammy-winning singer Prince died in 2016, a bill – the “Personal Rights in Names Can Endure” (or PRINCE) Act – was immediately introduced in the state legislature in an attempt to codify the right of publicity in Minnesota law; the bill was subsequently retracted. In April 2016, the Arkansas legislature passed the Frank Broyles Publicity Rights Protection Act of 2016 (“Frank Broyles Act” or “Act”).

It is important for individuals in the U.S. and outside the U.S. to be aware of the right of publicity law applicable in a state like Arkansas because unlike trademarks, patents, and copyrights, which are governed by federal law, in the U.S. the right of publicity is a state law intellectual property right. Moreover, thanks to globalization, a growing number of people from around the world are having reason to be in Arkansas and may have reason to seek to enforce their right of publicity in a state court. For instance, Arkansas is home to the world’s largest retailer, Wal-Mart.

1. What does the Frank Broyles Act protect?
The Act creates a property right in the commercial use of one’s identity. The Act protects five aspects of an individual’s identity: name, voice, signature, photograph, and likeness from unauthorized commercial use. The Act does not protect every aspect of an individual’s identity. The Act does not protect distinctive appearances, gestures, unique phrases, and mannerisms.

2. Who does the Frank Broyles Act protect? Does the Frank Broyles Act protect children?
The Act protects individuals defined as “natural persons whether living or dead.” Children of all ages are protected. However, the Act does not protect pets and other animals.

3. Does the Frank Broyles Act require an identity-holder to be a celebrity or to have a commercially valuable identity?
No. Unlike the law of some states, in Arkansas an identity holder need not be a celebrity. However, although the Act protects ordinary individuals, non-celebrities may have a harder time proving actual damages resulting from any unauthorized use of their identity.

4. Does protection under the Frank Broyles Act hinge on whether an individual is exploiting or has exploited his or her identity in the past?
No. Prior exploitation of an individual’s identity is not required to trigger the right of publicity in Arkansas.

5. Is the right of publicity created by the Frank Broyles Act transferable?
Yes. The property right created by the Act is freely transferable, assignable, licensable, and descendible, in whole or in part, by contract or by a trust, testamentary disposition, or other instrument.

6. How long does the right of publicity in Arkansas last? Does the right expire upon the death of an individual?
Arkansas’ right of publicity lasts throughout the lifetime of an individual and for fifty (50) years after the individual’s death. In other words, dead individuals have a protectable right of publicity in Arkansas. Under the Act, an individual’s right of publicity is exclusive to the individual during the individual’s lifetime. After death, the right is exclusive to the individual’s executors, administrators, heirs, devisees, and assignees.

7. What types of uses does the Frank Broyles Act prohibit? Is registration required to exercise Arkansas’ Statutory right of publicity?
The Act only prohibits unauthorized “commercial use” of an individual’s identity. Commercial use is defined as the use of an individual’s ‘readily identifiable’ name, voice, signature, photograph, or likeness “[f]or advertising, selling, or soliciting purchases of products, merchandise, goods, or services;” or “[o]n or in connection with products, merchandise, goods, or other commercial activity that is not exempt.”

8. Is registration required to exercise a right of publicity in Arkansas?
No. Formal registration is not required to exercise a right of publicity under the Act. However, to fully exercise and enforce a post-mortem right of publicity, it is advisable for a successor-in-interest of a descendant’s right of publicity to register his or her claim of property rights.

9. Is domicile and/or residence in Arkansas required to exercise Arkansas’ statutory right of publicity?
Yes. Protection under the Act is available “only to individuals maintaining a domicile or residence in the State of Arkansas” on or after the effective date of the Act. Although protection under the Act is available only to individuals maintaining a domicile or residence in Arkansas, given the presence of a growing number of Fortune 500 companies in the State, more and more people from across the U.S. and around the world have reason to be in the state and may have cause to enforce their right of publicity in the state.

10. Is any and every use of an individual’s identity absolutely prohibited in Arkansas?
No. The Act exempts several types of uses from liability including: (i) use “[i]n connection with a news, public affairs, or sports broadcast, … an account of public interest, or a political campaign;” (ii) use in work of political, public interest, or newsworthy value including a comment, criticism, parody, satire, or a transformative creation of a work of authorship; and (iii) use in a photograph or likeness where the individual appears as a member of the public, an attendee of a photographed event, or in a public place, and the individual is not named.

In conclusion, the right of publicity is going global. Sometimes foreign nationals bring right of publicity claims in the U.S. and other times, U.S. citizens attempt to enforce their right of publicity overseas. Former Panamanian dictator Manuel Noriega (against Activision Blizzard, Inc.) and legendary Brazilian soccer player Pelé (against Samsung Electronics Co. [complaint]) have both brought lawsuits in the U.S. to enforce their right of publicity. In turn, U.S. celebrities – Michael Douglas and Catherine Zeta-Jones – successfully enforced their rights of publicity in the United Kingdom by bringing a breach of confidence cause of action.
The provisions of the Frank Broyles Act are yet to be litigated in court. How to appropriately balance the right of publicity against the public interest in free speech and free press will be a challenge for courts in Arkansas. Moreover, unlike Indiana’s right of publicity statute that contain broad jurisdictional and choice of law provisions, the Act lacks a choice of law provision. It thus remains to be seen how court in Arkansas will address thorny jurisdictional questions if and when they arise.

Professor Uché Ewelukwa Ofodile is a professor of law at the University of Arkansas School of Law in Fayetteville, Arkansas, where she teaches in the international law and intellectual property fields. Professor Ewelukwa is also an active member of the American Society of International Law (ASIL) and currently serves as the Co-Chair of the Intellectual Property Interest Group. Her scholarship focuses particularly on international investment law and arbitration, business and human rights, China-Africa trade and investment relations, as well as the intersection of intellectual property law and human rights.

Suggested citation: Uché Ewelukwa Ofodile, The Right of Publicity Q&A: Arkansas’ Publicity Rights Protection Act of 2016, JURIST – Academic Commentary, Nov. 15, 2017, http://jurist.org/academic/2017/11/uché-ofodile-arkansas-publicity.php.