The Right to Publicity in Alabama
The Right to Publicity in Alabama
By JD Dickerson
Introduction
The Right to Publicity is a relatively new animal in the State of Alabama, as it was only established by statute (Ala. Code § 6-5-770 through 774) in 2015. At a surface level, the Right to Publicity is a person’s right to control their Indicia of Identity in the flow of commerce. The “indicia of identity” is defined as, “those attributes of a person that serve to identify that person to an ordinary, reasonable viewer or listener, including, but not limited to, name, signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more of those attributes.” Ala. Code § 6-5-771. This is commonly understood as someone’s “name, image, or likeness,” or “NIL” for short.
In short, the Alabama Code provides a person legal protection over information or attributes that identifies that person specifically.
Liability
According to Ala. Code § 6-5-772, a person who, without the consent of the person holding their indicia of identity, utilizes that persons indicia of identity “on or in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of donations, or for false endorsement” shall be liable under this article to that person, or to a holder of that person's rights. Ala. Code § 6-5-772(a). Further, according to subsection (b), “liability may be found under this section without regard as to whether the use is for profit or not for profit.” Ala. Code § 6-5-772(b).
In short, a person or entity will be liable if the misuse a person’s identity in a capacity engaging in commerce (actions that have the end goal of making money) in Alabama. However, this rule has exceptions related to free speech as discussed in the next section.
Free Speech Implications
As straight forward as the liability section may seem, there are free speech carve outs provided in Ala. Code § 6-5-773. To make it easier to digest, I will categorize §773 into what does qualify as fair use and what does not qualify as fair use. If the use of the indicia of identity does not qualify as fair use, it will constitute a breach of §772, and therefore,
The following are classified as fair use, and therefore do not run afoul of §772:
Any use of the indicia of identity that, if prevented, would violate the First Amendment of the United States Constitution and Section 4 of the Constitution of Alabama of 1901.
if the use of the indicia of identity is in connection with:
a news, public affairs, or public interest account,
political speech or a political campaign,
live or prerecorded broadcast or streaming of a sporting event or photos, clips, or highlights included in broadcasts or streaming of sports news or talk shows, or documentaries,
any advertising or promotion of the same (public interest work),
is part of an artistic or expressive work, such as a live performance, work of art, literary work, theatrical work, musical work, audiovisual work, motion picture, film, television program, radio program or the like (artistic work),
any advertising or promotion of the same
unless the claimant (the person bringing the claim) proves, subject to §772(a) (a violation of the U.S. Constitution), that the use in an artistic work is such a replica as to constitute a copy of the person's indicia of identity for the purposes of trade. Ala. Code § 6-5-773(b).
In lay terms, this means that if the person bringing the claim can prove that the use of the person’s identity is a copy of that identifier for the purposes of commerce.
Use of the indicia of identity in a commercial medium if the material containing the commercial use is authorized by the person or the person's authorized representative or agent for commercial sponsorship or paid advertising.
If the person utilizing the identifier has permission to do so by the person being identified, or a person who is authorized to give such permission, then there is no claim. If you give permission, you cannot bring a claim.
The following are not considered fair use and will run afoul of §772:
With respect to advertising and promotion of public interest works and artistic works, except for those carved out above, if the claimant proves that his or her indicia of identity has been directly connected to and affirmatively used in a commercial manner to advertise, promote, or endorse a product, good, or service.
Unless specifically mentioned above, one cannot utilize another person’s indicia of identity (identity or identifiers) without their consent, if that use is “directly connected” to commercial use.
If a person's indicia of identity is used, without such person's permission, in a manner stating or implying that such person has endorsed or supports a candidate for public office.
One cannot falsely assert or imply that a person has endorsed a specific political candidate.
Remedies
Remedies for the violation of the Right to Publicity are governed by Ala. Code § 6-5-774. The code allows for three different types of damages: Monetary, Injunctive, and Other Damages.
The monetary relief, as prescribed by the statue, is as follows:
Statutory damages in the amount of five thousand dollars ($5,000) per an action.
compensatory damages, including the defendant's profits derived from such use.
The plaintiff, within a reasonable time after the close of discovery, shall elect whether to claim statutory damages or to instead receive such monetary relief as the fact finder may independently determine to award in accordance with this section.
The person bringing the claim can get the statutory damages OR compensatory damages (damages stemming from the unauthorized use of the person bringing the claim’s identity).
Injunctive Relief
A violation of this article is deemed to constitute a rebuttable presumption of irreparable harm for the purposes of injunctive relief.
Injunctive relief, also known as an injunction, is a remedy which restrains a party from doing certain acts or requires a party to act in a certain way.
This is generally only given when:
There is no other remedy (money damages) at law; and
Irreparable harm will occur if the injunctive relief is not granted.
Other Damages
The Plaintiff can obtain “Any other damages available under Alabama law, including punitive damages.”
An election of statutory damages does not preclude the recovery of punitive damages if such damages are available under Alabama law.
Punitive damages are intended to punish the wrongdoer and are in addition to other damages, which are, in this case, the statutory damages or compensatory damages.
Case Law
The Alabama Supreme Court recently ruled on the Right to Publicity in Reg'l Prime Television v. South. In Reg'l Prime Television, the issue was about the usage of a Mr. Gillette’s indicia of identity in the show Ghostly Encounters and whether that usage of Gillette’s indicia of identity was “for the purposes of trade.” Reg'l Prime Television v. South, No. SC-2023-0132, at *39 (Ala. Mar. 8, 2024). The Court held that, because Gillette’s name was not used for any advertising, marketing, or in connection with any services. Id. There was no money made or commerce commenced from the usage of Gillette’s indicia of identity. Id.
Application to Business Owners
In terms of the application to business owners, the above information is very important if you are using a person’s indicia of identity in connection with their business. If it is ambiguous as to whether you are using another person’s indicia of identity, be sure to get permission to utilize that person’s identifiers. Especially if that person’s identifier is utilized in commerce in any form.
Conclusion
Alabama’s Right to Publicity is a new area of law with minimal case law to flesh it out. In interpreting the statute and minimal case law available, it seems like that for Ala. Code § 6-5-772 to kick in, the usage of the indicia of identity must be in connection with promoting commerce. Merely having one’s indicia of identity utilized without one’s consent is insufficient on its own to implicate the Right to Publicity.