March 3rd, 2007 by Benjamin Duranske
The Second Life Herald posted an interesting note today about a Second Life store called “Body Doubles.” Body Doubles (operated by ‘Persia Christensen’) sells avatar skins and shapes that resemble celebrities.
The right at issue is the “right of publicity.” Unlike copyright, trademark, or patent law, there’s no federal framework for the right of publicity — the right of publicity is enforced on a state by state basis. In California, (the most likely venue for enforcement of these rights) there is a well-developed body of law protecting celebrities’ rights to their own images. Other states offer varying degrees of protection, and some states have not formally recognized the right at all. Most of these protections arise from “common law” rather than statutes, meaning that the law comes from judges deciding cases rather than legislative action.
Virtually Blind Commentary
In general, a celebrity does have a right to prevent people from using his or her image. Because Body Doubles is selling “images” of celebrities in world, it is probably treading on those rights. A good example of enforcement is a recent lawsuit by Tom Cruise and Nicole Kidman against cosmetic retailer Sephora, which allegedly used the celebrity couples’ image without their permission in an advertising campaign.
In the event of a suit, however, Body Doubles would have a potential defense. Body Doubles could claim that the images are sufficiently artistic and interpretative to give them first amendment protection as artistic works.
Though the first amendment does provide some protection, “commercial speech” gets less protection than other kinds of speech. This is an unsettled field of law, but a recent case (Tiger Woods v. Jireh Publishing) helped clarify the interplay between first amendment protection and the right of publicity. In that case, an Ohio District Court held that a painting of Tiger Woods was protected by the first amendment as an artistic work. On appeal, the 6th Circuit affirmed the District Court’s holding.
Notably, Body Doubles’ avatars of dead celebrities are likely no more protected than those of living stars. California’s 1985 Celebrities Rights Act protects the right of publicity for seventy years after the death of a celebrity.
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