Facts
- American Heritage Products, Inc. and related individuals developed, manufactured, and marketed a plastic bust of Dr. Martin Luther King, Jr., initially as a funeral accessory and commemorative item.
- Defendants sought the King Center’s endorsement and participation; the King Center refused.
- Defendants marketed the busts anyway, including half-page Ebony magazine advertisements describing the bust as an “exclusive memorial” and suggesting an “opportunity to support” the King Center despite the Center’s noninvolvement.
- The marketing used Dr. King’s name and likeness and included excerpts from copyrighted speeches without authorization.
- The King Center, Dr. King’s estate representative, and a speech-rights assignee sought to stop use of the King Center’s name, prevent copyright infringement, and restrain the unauthorized commercial exploitation of Dr. King’s likeness.
- In federal court, a preliminary injunction barred use of the King Center’s name and further copyright infringement but did not enjoin manufacture and sale of the busts.
- On appeal, the Eleventh Circuit certified state-law questions to the Supreme Court of Georgia regarding the existence and scope of a “right of publicity.”
Issues
- Whether Georgia recognizes a right of publicity as a cause of action distinct from the right to privacy.
- If recognized, whether the right of publicity survives death and is inheritable and devisable.
- If survivable, whether the right depends on the person having commercially exploited the right during life.
- If lifetime exploitation were required, what standards and proof would define and establish “commercial exploitation.”
Decision
- Georgia recognizes a right of publicity distinct from privacy.
- Unauthorized appropriation of another’s name and likeness—whether by photograph or sculpture—without consent and for the appropriator’s financial gain is actionable as a tort, for both private persons and public figures.
- The right of publicity survives the owner’s death and is inheritable and devisable.
- Survival is not conditioned on the decedent’s lifetime commercial exploitation of the right.
- Because lifetime exploitation is not required, the court found it unnecessary to answer the question requesting standards for proving “commercial exploitation.”
Legal Principles
- Georgia law treats unauthorized, for-profit use of a person’s name or likeness as a protectable commercial interest separate from privacy-based claims of mental or emotional harm.
- Public-figure status does not forfeit protection against nonconsensual commercial appropriation of identity.
- The right of publicity is descendible (inheritable and devisable) and may be enforced after death by the owner’s estate or successors.
- Post-mortem enforcement does not require proof that the individual monetized or licensed their identity while alive.
- In publicity actions involving public figures, damages may be assessed by the value of the appropriation to the user.
Conclusion
The Supreme Court of Georgia confirmed that Georgia recognizes a distinct right of publicity barring unauthorized commercial use of a person’s name or likeness, that the right applies to public figures, and that it survives death as an inheritable and devisable interest without any requirement that the person exploited the right during life.