Kentucky
Kentucky has a right of publicity statue that includes a fifty-year post-mortem right for “public figures.” It is not clear to what extent the statute supplants the state’s recognition of an independent common law right of publicity or the privacy-based tort of appropriation.
Statute
YES
In 2018, Kentucky adopted a criminal law prohibiting the “distribution of sexually explicit images without consent.” Ky. Rev. Stat. Ann. § 531.120. This statute is violated when a person “intentionally distributes . . . erotic matter without the written consent of the person depicted, and does so with the intent to profit, or to harm, harass, intimidate, threaten, or coerce the person depicted.”
Common Law - Right of Publicity
UNCLEAR
The Kentucky Supreme Court has expressly indicated that it is an open question whether the statute subsumes the common law right of publicity or the privacy-based tort of appropriation. Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001). At least one federal court has concluded that common law rights remain, and have indicated that state recognizes all four privacy torts. Thornton v. W. & S. Fin. Grp. Beneflex Plan, 797 F.Supp.2d 796 (W.D. Ky. 2011); see also McKenzie v. Allconnect, Inc., 369 F. Supp.3d 810 (E.D. Ky. 2019).
Common Law - Right of Privacy-Appropriation Tort
UNCLEAR
Prior to the adoption of the Kentucky statute in 1984, Kentucky courts had long recognized the right to privacy and the action for the misappropriation of one’s name or likeness. Courts seem divided on whether the action remains after the statute and also whether the appropriation-based tort is substantively distinct from the right of publicity
McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky. 1981)
Foster-Milburn Co. v. Chinn, 120 S.W. 364 (Ky. Ct. App. 1909)
Thornton v. W. & S. Fin. Grp. Beneflex Plan, 797 F.Supp.2d 796 (W.D. Ky. 2011)
Cheatham v. Paisano Publications, Inc., 891 F. Supp. 381 (W.D. Ky. 1995)
Post-Mortem Right
YES – 50 years for “public figures”
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
UNCLEAR
The inter vivos aspect of the statute does not seem to require commercial value, however, some decisions have suggested that it does require a demonstration of commercial value. The post-mortem right requires that an identity-holder have been a “public figure” before death, but it is not clear whether one needs to demonstrate “commercial value” as well.
Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001)
Foster-Milburn Co. v. Chinn., 120 S.W. 364 (Ky. Ct. App. 1909)
Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir. 2000)
Thornton v. W. & S. Fin. Grp. Beneflex Plan, 797 F.Supp.2d 796 (W.D. Ky. 2011)
Cheatham v. Paisano Publications, Inc., 891 F. Supp. 381 (W.D. Ky. 1995)
Does the law protect persona?
UNCLEAR
Although the Kentucky right of publicity statute specifically refers to protection only for “name and likeness,” it defines the right of publicity more broadly as a “right of protection from appropriation of some element of an individual’s personality.” At least one federal case, has interpreted the right of publicity’s scope broadly.
Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir. 2000)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The Kentucky right of publicity statute requires that a use be for “commercial exploitation” and that a post-mortem use be for “commercial profit, but does not specifically limit liability commercial speech. The Kentucky Supreme Court has suggested that the statute may apply even in the context of expressive works, but has suggested that most uses in noncommercial speech will be protected by the First Amendment. The common law right of publicity tort – if it exists may be limited to uses for “commercial exploitation” – but the common law tort of misappropriation may not be.
Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001)
Thornton v. W. & S. Fin. Grp. Beneflex Plan, 797 F.Supp.2d 796 (W.D. Ky. 2011)
Cheatham v. Paisano Publications, Inc., 891 F. Supp. 381 (W.D. Ky. 1995)
First Amendment Analysis
Kentucky has adopted a relatedness test for determining whether the First Amendment protects uses of a person’s identity, at least in the context of expressive works. This test considers if the use was related to the purpose of the underlying expressive work or instead was a “disguised commercial advertisement for the sale of goods or services.” The Sixth Circuit, in which Kentucky sits, has also adopted this test and considered and applied a variety of other tests as well.
Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001)
Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) (applying relatedness test to Michigan right of publicity claim)
ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (8th Cir. 2003) (applying relatedness, transformativeness and general balancing tests to Ohio right of publicity claim)