Tennessee
Much of Tennessee’s law on the right of publicity has been driven by the Elvis Presley estate. Since 1984 a statutory right has been in place that protects both the living, and, unsurprisingly, the dead.
Statute
YES
Tennessee provides a statutory right of publicity under its Personal Rights Protection Act of 1984. It provides “property in the use” of one’s “name, photograph, or likeness.” The rights are considered “freely assignable and licensable.” The statute also provides post-mortem rights. The right is violated when an “individual’s name, photograph, or likeness” is used “as an item of commerce for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising, [or] solicitation of donations.”
Violation of the right gives rise to both a civil action and criminal liability (a misdemeanor offense). The law provides attorney’s fees to prevailing members of the armed forces. The statute also allows for the destruction of goods.
Common Law - Right of Publicity
UNCLEAR
Tennessee courts have held that there is a common law right of publicity and that the right is descendible. The Tennessee Personal Rights Protection Act also expressly states that the remedies are meant to be “cumulative” and “in addition to any other provided for by law.” Nevertheless, federal courts have held that the statutory right supplants the common law right, and state courts have not yet disagreed.
One Tennessee appellate court held that the statute does not limit any rights retroactively, but did not decide its prospective effect.
State ex rel. Elvis Presley Intern. Mem’l Found. v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1987)
Common Law - Right of Privacy-Appropriation Tort
LIKELY YES
Tennessee recognizes a right to privacy and Prosser’s articulation of the privacy torts, including the appropriation of a person’s “name or likeness.” It is unclear how this common law tort interacts with the statutory regime under the Personal Rights Protection Act.
West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001)
Post-Mortem Right
YES
The statute provides post-mortem rights without regard to whether an individual “commercially exploited” her identity during her lifetime. The post-mortem period is for ten years after death, at which time the post-mortem right can terminate if there is no commercial exploitation for two subsequent years. Tennessee courts have also held that there is a common law right of publicity and that this continues post-mortem. It is not clear, however, whether the statute preempts this common law right.
Although it is not entirely clear, it appears that if commercial exploitation continues after the ten-year period, post-mortem rights could last indefinitely under the statute.
State ex rel. Elvis Presley Intern. Mem’l Found. v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1987)
Elvis Presley Enters. v. Elvisly Yours, Inc., 2 U.S.P.Q.2d 1660 (6th Cir. 1987)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
LIKELY NO
Tennessee courts and the state statute reject a requirement of commercial exploitation in the context of post-mortem rights, and have not considered the question in the context of inter vivos rights.
Does the law protect persona?
UNCLEAR
At least one federal court has applied the state right of publicity statute to look-alikes and to band names that evoke or represent individuals.
Apple Corps. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
LIKELY NOT, but may be limited to advertising context
The right is violated when an “individual’s name, photograph, or likeness” is used “as an item of commerce for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising, [or] solicitation of donations.” Although the statute does not appear to be limited to commercial advertising, federal courts repeatedly have limited it to the advertising or promotional context, excluding performances, sports broadcasts, websites, and creative works from its reach.
Marshall v. ESPN, Inc., __ F.Supp.3d__, 2015 WL 3606645 (M.D. Ten., June 8, 2015)
Clark v. Viacom Intern., Inc., 2014 WL 1934028 (M.D. May 13, 2014)
Gauck v. Karamian, 805 F. Supp.2d 495 (W.D. 2011)
Apple Corps. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993)
Statutory Defenses
The statute excludes uses:
- if a person appears as an indistinct member of a group
- if they are in news, public affairs, or sports broadcasts
The statute exempts owners and employees of any medium used for advertising, if they did not have knowledge that the use at issue was unauthorized. The statute also states that a use will not be for “purposes of advertising or solicitation solely because the use is commercially sponsored or contains paid advertising.” The meaning of this particular provision is not entirely clear, but it seems to allow for television shows, for example, to not fall under the statute’s provisions. On the other hand, such shows are not expressly exempted from liability in contrast to many other states’ statutes, suggesting that there could be liability in some circumstances.
First Amendment Analysis
Tennessee sits in the Sixth Circuit which has had occasion to consider the interaction between the First Amendment and the right of publicity in the context of other states’ laws. The Sixth Circuit has applied the “Rogers/relatedness/Restatement Test” for use of celebrity’s names as the title of expressive works. See Rogers v. Grimaldi, 875 F.2d 994 (2nd Cir. 1989). Under Rogers, the use of a celebrity’s name in a work’s title is protected by the First Amendment unless the title is “wholly unrelated” to the work or is “simply a disguised commercial advertisement for the sale of goods or services.”
Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003)
ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003)
The Sixth Circuit also has balanced such factors as the potential adverse market effects of the defendant’s work against the celebrity’s right to receive compensation for appearances and endorsements, whether the defendant’s work is “transformative” or merely a literal depiction of the celebrity, and the restraints on the defendant’s right to freedom of expression. ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003)
Other Commentary
Several courts have held that Tennessee’s statutory right of publicity is preempted when it is based on the use of copyrighted works.
Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 881 (Tenn. Ct. App. 2014)
Stanford v. Caesars Entertainment, Inc., 430 F.Supp.2d 749 (W.D. Tenn. 2006)
A Tennessee appellate court held that a parent’s consent to the taking of a minor’s photograph and its use in advertising was adequate, even though the advertisement was used decades later and in new contexts.
Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 881 (Tenn. Ct. App. 2014)
Federal courts have assumed that Tennessee’s right of publicity statute is exempted from the CDA § 230.
Gauck v. Karamian, 805 F. Supp.2d 495 (W.D. Tenn. 2011).