Indiana
Indiana recognizes both a statutory right of publicity and the common law tort of appropriation of name and likeness. The Indiana statute provides a post-mortem right for 100 years after death, including for those who died domiciled in other jurisdictions.
Statute
YES
Indiana recognizes a statutory right of publicity as a property interest in a personality’s “(1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gesture; or (9) mannerisms.” The rights recognized under the statute are divisible, “freely transferable and descendible.”
Ind. Code § 32-36-1-0.2 et seq. enacted July 1, 1994.
Common Law - Right of Publicity
NO
No court to date has considered a common law right of publicity separate from the appropriation tort. The Indiana statute does not preempt the common law and therefore leaves open the possibility that such an independent common law right could be found.
Common Law - Right of Privacy-Appropriation Tort
YES
Indiana has long recognized a common law tort of invasion of privacy that includes the tort of appropriation of name or likeness. This right continues unimpeded after the passage of Indiana’s Right of Publicity Statute
It is uncertain, however, whether the state recognizes the tort of publication or disclosure of private facts. See F.B.C. v. MDwise, Inc., 122 N.Ed.3d 834 (Ind. Ct. App. 2019)
Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001)
Cont’l Optical Co. v. Reed, 86 N.E.2d 306 (Ind. App. 1949)
Post-Mortem Right
YES
Under the Indiana statute, post-mortem rights are available for 100 years after a personality’s death. The post-mortem rights exist regardless of the deceased personality’s “domicile, residence, or citizenship” at the time of death. To be actionable, however, the use of the person’s identity must take place within the state. In 2012, the statute was amended to apply retroactively to personalities who died before the enactment of the statute (July 1, 1994). The common law tort of appropriation may also survive death, but no court has specifically addressed the issue.
Ind. Code § 32-36-1-0.2 et seq.
Felsher v. Univ. of Evansville, 755 N.E.2d 589, 594 (Ind. 2001)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
YES for statute
NO for common law appropriation tort
The Indiana Rights of Publicity Statute requires both living and deceased personalities to have “commercial value” in their identity, and expressly excludes personalities who have commercial value solely because of a criminal charge or conviction. In contrast, the tort of appropriation has applied to plaintiffs without commercially valuable identities. A decision by the Indiana Supreme Court suggests in a foonote that a use for a commercial purpose may be enough to show commercial value. Daniels v. FanDuel, 109 N.E.3d 390 (Ind. 2018)
In Daniels, the Court points to newspaper coverage at time of the passage of the 1994 right of publicity statute suggesting that it was motivated by efforts to stop uses not only of the famouse, but also of less well-known individuals who were not known for their commercially valuable identities. Instead, the article points to efforts to stop the use of a child’s image, Ryan White, on trading cards that showed people with AIDS allgedly to raise money for AIDS research. Although White was likely used to help pass the bill, the adoption of this view of the bill’s motivation by the state Supreme Court may influence the future interpretation of its scope. See Dan Wetzel, “Law Ends Pirating of Celebrities,” The Indianapolis News, June 25, 1994, at B1.
Ind. Code § 32-36-1-0.2 et seq.
Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001)
Does the law protect persona?
YES, for “personalities”
Indiana’s statute provides broad protection for personalities, including protection for such aspects of a personality as “distinctive appearance,” “gesture[s]” and “mannerisms.” To date the appropriation tort has not been applied beyond the use of a name or likeness.
Ind. Code § 32-36-1-0.2 et seq.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
Although the Indiana Rights of Publicity Statute prohibits the use of a personality’s right of publicity for “commercial purpose,” it expressly includes uses in the context of “fundraising.” The appropriation tort is broader, allowing liability even if the use is not commercial in any sense. The Indiana Supreme Court has suggested that the law applies in the context of noncommercial speech, such as videogames and movies. One case has suggested that if a use is only incidental or fleeting, then that use must have been directed at exploiting the identity holder’s “commercial value.”
Ind. Code § 32-36-1-0.2 et seq.
Daniels v. FanDuel, (Ind. Oct. 24, 2018)
Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001)
Westminster Presbyterian Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859 (Ind. Ct. App. 2013)
Statutory Defenses
The statutory right has many express exemptions from liability, including uses in news reporting, and entertainment. The statute specifically exempts uses in “literary works, theatrical works, musical compositions, film, radio, or television programs,” “original works of fine art,” and in advertisements and promotional materials in connection with any of these uses. Uses that have political or newsworthy value or are in connection with a “topic of general public interest” are also protected. The statute also exempts uses in connection with personalities who have commercial value solely as a result of a criminal charge or conviction. Videogames have been included within the “literary works” exemption.
Daniels v. FanDuel, (Ind. Oct. 24, 2018)
Dillinger, LLC v. Elec. Arts Inc., 795 F. Supp. 2d 829 (S.D. Ind. 2011)
First Amendment Analysis
There is no case law discussing First Amendment protections in connection with the Indiana Rights of Publicity Statute. However, the Indiana Supreme Court has interpreted the newsworthiness exemption to the statute broadly, and has encompassing First Amendment values.
Under the common law tort for invasion of privacy by appropriation, courts have recognized First Amendment protections, particularly on the basis of newsworthiness and matters of public interest. Indiana sits in the Seventh Circuit which has briefly considered First Amendment claims in the context of the misappropriation tort and right of publicity statutes. In one notable case, the circuit held that the First Amendment is no obstacle to a misappropriation of image claim when a magazine published nude photographs without permission.
Daniels v. FanDuel, (Ind. Oct. 24, 2018)
Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985)
Time Inc. v. Sand Creek Partners, L.P., 825 F. Supp. 210 (S.D. Ind. 1993)
Other Commentary
The statute provides statutory damages of $1,000 or actual damages.
Ind. Code § 32-36-1-0.2 et seq.
One court has required under the Indiana statute that the use be identifiable to consumers.
Ellington v. Gibson Piano Ventures, Inc., 2005 WL 1661729 (S.D. Ind. June 24, 2005)