Maryland
Maryland does not recognize a distinct right of publicity. The state does, however, recognize the invasion of privacy and the appropriation tort. In contrast to many other states, Maryland thus far has limited appropriation claims to those brought by individuals with a pre-existing “commercial or other value” in their name or likeness.
Statute
NO
Common Law - Right of Publicity
NO
However, the common law appropriation claim seems to be cabined in ways that make it more akin to a right of publicity, than to the traditional privacy-based tort.
Common Law - Right of Privacy-Appropriation Tort
YES
The state recognizes both a right to privacy and the appropriation branch of that tort as articulated by the Restatement (Second) of Torts § 652.
Carr v. Watkins, 177 A.2d 841 (Md. 1962)
Lawrence v. A.S. Abell, Co., 475 A.2d 448 (Md. 1984)
Post-Mortem Right
UNCLEAR
No court has considered the question.
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
MAYBE
Although the plaintiff need not be a celebrity, numerous decisions have rejected appropriation claims when a plaintiff does not have a commercially valuable identity. Although in each instance courts have noted that the value need not be commercial in nature, no case has allowed a claim to proceed without demonstrated commercial value.
Lawrence v. A.S. Abell, Co., 475 A.2d 448 (Md. 1984)
Barnhart v. Paisano Publications, LLC, 457 F.Supp.2d 590 (D. Md. 2006)
LTVN Holdings, LLC v. Odeh, 2010 WL 2612690 (D. Md. 2010)
Does the law protect persona?
No court has addressed the question to date.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
UNCLEAR
No court in Maryland has expressly limited the right to commercial speech. The state follows the Restatement (Second) of Tort approach which does not so limit the right. However, the state’s Court of Appeals has indicated that the appropriation tort only applies to uses for advertising and other “commercial purposes.” One federal district court has also suggested that the use of the person’s identity must be directed to selling goods.
Lawrence v. A.S. Abell, Co., 475 A.2d 448 (Md. 1984)
Comins v. Discovery Comm’ns, 200 F.Supp.2d 512 (D. Md. 2002)
First Amendment Analysis
To date no Maryland court or federal court has considered a unique test for balancing first amendment and right of publicity interests.