Alabama

YES

On May 18, 2015 Governor Robert Bentley signed the Alabama Right of Publicity Act, which went into effect on August 1, 2015.  It has been codified at Alabama Code § 6-5-770 et seq. The law provides for broad protection of any “indicia of identity” when used on or in “products, goods, merchandise, or services” in the state, or for advertising or selling such items, or for fund-raising, or for false endorsement.  The right is a freely transferable property right. Statutory damages of $5,000 are available.

Alabama Senate Bill 197 as Passed

Alabama Code Section 6-5-770 et seq

NO

The 11th Circuit Federal Court of Appeals has interpreted Alabama’s privacy-based appropriation tort as analogous to a right of publicity, but also as distinct.  It is not yet clear what effect the recently passed right of publicity law will have, if any, on any future recognition of a common law right of publicity.

Allison v. Vintage Sports Plaques, 136 F.3d 1443 (11th Cir. 1998)

YES

Alabama has long recognized a right of privacy and the tort of misappropriation, and has adopted the Restatement (Second) of Torts. The common law provides a cause of action for the unauthorized appropriation of personality, name, or likeness for the commercial use or benefit of a defendant.  The state has held that public figures do not relinquish their privacy rights.  The state recognizes both commercial and dignitary injuries as cognizable under the tort.  It is not yet clear what effect, if any, the recently passed right of publicity act will have on the appropriation tort.

Schifano v. Greene County. Greyhound Park, Inc., 624 So. 2d 178 (Ala. 1993)

Bell v. Birmingham Broad. Co., 96 So.2d 263 (Ala. 1957)

Birmingham Broad. Co. v. Bell, 68 So. 2d 314 (Ala. 1953)

Smith v. Doss, 37 So.2d 118 (Ala. 1948)

Minnifield v. Ashcraft, 903 So. 2d 818 (Ala. Civ. App. 2004)

YES

The recently passed right of publicity act provides a fifty-five year post-mortem period for anyone who resided in the state or who died while in the state or whose estate is probated within the state.

Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

UNCLEAR

Both the statute and common law that preceded it are clear that a person who is not a celebrity or “famous” can bring a claim.  The person also need not have “commercially exploited” her identity for rights either while alive or when dead.  However, prior to the passage of the law the Alabama Supreme Court indicated that a plaintiff must prove that the appropriated identity has a “unique quality or value [] that would result in commercial profit” to the defendant.  It is not clear how such a conclusion will be interpreted in light of the new statute.

Alabama Senate Bill 197 as Passed

Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178 (Ala.1993)

Minnifield v. Ashcraft, 903 So. 2d 818 (Ala. Civ. App. 2004) 

Does the law protect persona?

LIKELY YES

The new statute expressly provides for the protection of any indicia of identity.  If any “attributes of a person” are used that “identify that person to an ordinary reasonable viewer or listener” there can be liability.  The statute provides examples of “name, signature, photograph, image, likeness, voice,” but states that it is not limited to such attributes.  Under the misappropriation tort courts have used the term “personality,” and one appellate court allowed a claim to proceed on the basis of the use of reproduction of a persons’ torso.

Alabama Senate Bill 197 as Passed

Smith v. Doss, 37 So.2d 118 (Ala. 1948)

Tanner v. Ebbole, 88 So. 3d 856 (Ala. Civ. App. 2011)

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

NO

The new statute expressly states that there can be liability without regard to whether a use was for profit, though does suggest the use should be in relation to a product, service, merchandise, fundraising, or related promotions.  Prior to the passage of the statute, the misappropriation tort in the state required a commercial use, and one federal court limited claims to commercial speech.

Alabama Senate Bill 197 as Passed

Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178 (Ala.1993)

Grimsley v. Guccione, 703 F. Supp. 903 (M.D. Ala. 1988)

YES

The statute provides a host of exemptions, but seems to be surprisingly underprotective of expressive works.  Exemptions include:

•Any use protected by the First Amendment or the Alabama constitution

•Uses in news, public affairs, public interest accounts, political speech, political campaign, broadcasts or reports of sporting events, documentaries, or related advertising.  The exception for uses in political campaigns or speech does not apply if there is a suggestion of false endorsement.

•Uses in artistic or expressive works, including live performances, works of art, literary works, theatrical works, musical works, audiovisual works, motion pictures, films, television programs, radio programs, or similar works, and related advertising, UNLESS the “claimant proves [that the use] in an artistic work is such a replica as to constitute a copy of the person’s indicial of identity for hte purposes of trade.”  This exception also is denied if the use is “in a commercial manner to advertise, promote, or endorse a product, good, or service.” 

•Uses in the resale of lawful products.

Alabama Senate Bill 197 as Passed

Alabama has not considered a unique test for balancing First Amendment and right of publicity or appropriation of name or likeness interests, but has long recognized a public interest and newsworthiness defense, which it has distinguished from a pure First Amendment defense.

J.C. v. WALA-TV, Inc., 675 So.2d 360 (Ala. 1996)

Bell v. Birmingham Broadcasting Co., 96 So.2d 263 (Ala. 1957)

Smith v. Doss, 37 So.2d 118 (Ala. 1948)

The Eleventh Circuit Court of Appeals in which Alabama sits has had several occasions to consider the interplay between the First Amendment and the right of publicity and has emphasized that the newsworthiness defense protects First Amendment interests. 

Toffoloni v. LFP Publ’g Grp., 572 F.3d 1201 (11th Cir. 2009) (in context of Georgia law)

The 11th Circuit has recognized a first-sale defense to right of publicity claims in the context of Alabama law.

Allison v. Vintage Sports Plaques, 136 F.3d 1443 (11th Cir. 1998)