Right of Publicity

Rights exist throughout life. Posthumous rights vary by state from no protection to 100 years after death. Estate planning should account for these variations.

Yes, commercial use typically requires consent, whether for celebrities or ordinary individuals. Proper releases should be obtained before use.

Publicity rights protect commercial value—the right to profit from commercial use. Privacy rights protect against unwanted intrusion and disclosure.

Newsworthy and editorial uses are generally protected by the First Amendment. However, the line between editorial and commercial use can be unclear.

AI-generated likenesses likely implicate publicity rights. Some states are specifically addressing these technologies. Treat AI likenesses like other likeness uses.

Fair use is a defense that permits limited use of copyrighted material without permission. Courts consider four factors: the purpose and character of use (commercial vs. educational, transformative vs. copying), the nature of the copyrighted work, the amount used, and the effect on the market. Fair use is highly fact-specific.

For works created today by individual authors, copyright lasts for the life of the author plus 70 years. Works made for hire and anonymous/pseudonymous works are protected for 95 years from publication or 120 years from creation, whichever is shorter. Older works may have different terms.

Yes, software code is protected by copyright as a literary work. Both source code and object code can be registered. However, copyright protects the expression of ideas, not the underlying functionality—patent protection may be more appropriate for novel methods and processes implemented in software.

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