New Jersey
New Jersey does not have a right of publicity statute. The state recognizes a common law right of privacy and the appropriation branch of the tort. Federal courts have treated this as synonymous with a right of publicity and New Jersey courts have treated the right to one’s name and likeness as a transferable property right.
Statute
NO
Common Law - Right of Publicity
YES
Federal courts have held that New Jersey would recognize a right of publicity and at least one state court has suggested that “celebrity goodwill” is a recognized property right in the state.
Hart v. Elec. Arts. Inc., 717 F.3d 141 (3d Cir. 2013)
Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)
Piscopo v. Piscopo, 231 N.J. Super. 576 (1988)
Common Law - Right of Privacy-Appropriation Tort
YES
New Jersey has long recognized a right to privacy and a property right in one’s name and likeness.
Palmer v. Schonhorn Enters., Inc., 232 A.2d 458 (N.J. Sup. Ct. 1967)
Edison v. Edison Polyform Mfg., 73 N.J. Eq. 136 (1907)
Post-Mortem Right
LIKELY YES
Although no state court has so held, federal courts applying New Jersey law have recognized that the common law right of publicity and/or appropriation claims are descendible.
McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)
Estate of Presley v. Russen, 513 F.Supp. 1339 (D.N.J. 1981)
Thelonious Monk Jr. v. North Coast Brewing Co., CV-05015-HSG (N.D. Cal., Jan. 31, 2018)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
NO
One recent district court decision allowed a privacy-based appropriation claim to proceed in the context of a forged signature on an altered compliance audit report. See Tonkinson v. Byrd, No. 1:17-cv-06162-NLJ-AMD, 2018 WL 1919829 (D.N.J. Apr. 24, 2018).
Faber v. Condecor Inc., 477 A.2d 1289
Jarvis v. A & M Records, 827 F. Supp. 282 (D.N.J. 1993)
Does the law protect persona?
LIKELY YES
Federal courts have extended protection under New Jersey law in the context of characters associated with actors and the use of voice and vocal style.
McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)
Prima v. Darden Rest. Inc., 78 F. Supp. 2d 337, 344 (D.N.J. 2000)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
New Jersey’s appropriation tort requires a use for “trade purposes” which has been interpreted as a commercial use, but it has never been limited to “commercial speech.”
Claims have been allowed for the use of biographical data in a board game, stage shows and videogames.
Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689 (App. Div. 1982)
Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Sup. Ct. 1967)
Hart v. Elec. Arts. Inc., 717 F.3d 141 (3d Cir. 2013)
Presley’s Estate v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)
First Amendment Analysis
New Jersey courts have recognized that the First Amendment is a defense to the right of publicity and the Third Circuit Court of Appeals has adopted the transformative use test to evaluate conflicts between the First Amendment and New Jersey’s right of publicity.
Hart v. Elec. Arts. Inc., 717 F.3d 141 (3d Cir. 2013)
Mitchell v. Cartoon Network, Inc., No. 15-5668, 2015 WL 12839135 (D.N.J. Nov. 20, 2015) (for write-up on casee, see my post on the case)
Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986)
Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689 (App. Div. 1982)
F.D. v. Kenny, 15 A.3d 200 (N.J. 2011)
Other Commentary
At least one New Jersey Court has recognized that “celebrity goodwill” is property that must be included the martial property to be divided upon the dissolution of a marriage.
Piscopo v. Piscopo, 231 N.J. Super. 576 (1988)
A federal district court held a right of publicity claim preempted when the heart of the claim was based on the use of a copyrighted work.
Jarvis v. A & M Records, 827 F. Supp. 282 (D. N.J. 1993)