Rhode Island
Rhode Island has no common law right of publicity or right to privacy. However, it has two privacy statutes both of which protect against the misappropriation of one’s name or likeness. Thus far, courts have suggested that one protects against commercial misappropriation, and the other against noncommercial misappropriation.
Statute
YES
Rhode Island provides a right to privacy via statute and specifically provides a cause of action for the “unauthorized use of name, portrait or picture [for] commercial purposes.” A separate statute also provides a “right to be secure from an appropriation of one’s name or likeness” when the use “benefit[s] someone other than the claimant.”
Rhode Island adopted the commercial appropriation statute in 1972 and then later adopted a broader privacy statute that covers all four Prosser torts. One federal court has differentiated the two statues on the basis that one prevents commercial appropriation and the other is directed at noncommercial appropriation. Mendosa v. Time, Inc., 678 F. Supp. 967 (D.R.I. 1988). One federal court has also required proof that a defendant has received a direct benefit from the use. Doe ex rel Roe v. Backpage.com, LLC, __ F.3d __, 2015 WL 2340771 (D. Mass. 2015), pending appeal.
Leddy v. Narragansett Television L.P., 843 A.2d 481 (R.I. 2004)
Mendosa v. Time, Inc., 678 F. Supp. 967 (D.R.I. 1988)
Common Law - Right of Publicity
NO
Henry v. Cherry & Webb, 73 A. 97 (R.I. 1909)
Common Law - Right of Privacy-Appropriation Tort
NO
Rhode Island has rejected a common law right to privacy.
Henry v. Cherry & Webb, 73 A. 97 (R.I. 1909)
Post-Mortem Right
LIKELY NOT
The right to privacy terminates at death. The Rhode Island Supreme Court, however, did not specifically consider an appropriation claim which the Restatement (Second) of Torts suggests may be descendible even though the other privacy torts are not.
Clift v. Narragansett Television L.P., 688 A.2d 805, 814 (R.I. 1996)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
LIKELY NOT
A state trial court allowed a right of publicity claim to proceed when brought by an employee whose photograph was used on employer’s website.
Rompf v. Int’l Tennis Hall of Fame, Inc., No. NC-2016-0053, 2016 R.I. Super. LEXIS 104 (Super. Ct. Aug. 25, 2016).
Does the law protect persona?
UNCLEAR
No case to date has considered the question.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
LIKELY NOT
“Commercial purposes” is likely meant more broadly and the separate privacy statute allows liability when a use is simply for the defendant’s benefit. The Rhode Island Supreme Court has interpreted § 9-1-28 as being limited to “trade or advertising purposes,” and has concluded that promotions for television news do not meet that standard. It has agreed with a federal court that §9-1-28.1 applies to noncommercial uses.
It’s not clear how one is supposed to interpret the potentially conflicting statutes. However, one federal court has suggested that the first statute covers commercial appropriation, while the broader privacy statute covers misappropriation in noncommercial contexts. Mendosa v. Time, Inc., 678 F. Supp. 967 (D.R.I. 1988). In Mendosa, a district court held that Time’s selling of a photograph to the public that had appeared in the magazine constituted a use for “trade or advertising purposes.” The suggestion that § 9-1-28.1 might apply to noncommercial uses, such as use in political campaigns suggests a wide category of potentially infringing uses in the state.
Leddy v. Narragansett Television L.P., 843 A.2d 481 (R.I. 2004)
Mendosa v. Time, Inc., 678 F. Supp. 967 (D.R.I. 1988)
Statutory Defenses
The statue exempts:
- uses related to public speech or on matters of public concern
- professional photographers in their establishment unless they receive a written objection by the person portrayed
- resale of items
First Amendment Analysis
Rhode Island has held that advertisements for news stories are constitutionally protected from the privacy laws.
Leddy v. Narragansett Television L.P., 843 A.2d 481 (R.I. 2004)
Other Commentary
It seems possible given the exclusivity of the privacy-based statutes that rights to one’s name and likeness are not treated as property in the state and are not assignable.