Texas
Texas recognizes both a common law right to prevent the appropriation of one’s name or likeness, and a statutory post-mortem right of publicity.
Statute
YES, post-mortem only
The statute provides a property right in a deceased individual’s “name, voice, signature, photograph, or likeness” for fifty (50) years after death. The claim is limited to individuals who died on or after January 1, 1937 and to uses “in connection with products, merchandise, or goods” or “for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services.” There is a statutory damages provision of $2,500.
Texas also has a “revenge porn” law, that bars the “unlawful disclosure or promotion of intimate visual material.” Tex. Penal Code § 21.16. The law was recently revised to require that the material was posted with the “intent to harm” the depicted individual, and that the victim had a reasonable expectation that the images would not be circulated. See HB98 (effective Sept. 1, 2019). This amendment followed in the wake of the decision in Ex Parte Jones, No. 12-17-00346-CR, 2018 Tex. App. Lexis 3439 (Tex. App. May 16, 2018) striking down the prior version of the statute.
The post-mortem statute went into effect in 1987.
Common Law - Right of Publicity
YES
The right appears synonymous with the privacy-based appropriation tort.
A Texas appellate court has held that there is a claim for misappropriation of one’s name or likeness even if a person is a public figure and has no or a limited right to privacy. A case decides by the Texas Civil Court of Appeals from 1951 suggests that there may also be a separate property-based claim for the use of one’s name and signature independent of any right to privacy.
Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Ct. Civ. App. Tex. 1975)
U.S. Life Ins. Co. v. Hamilton, 238 S.W.2d 289 (Ct. Civ. App. Tex. 1951)
Brown v. Ames, 201 F.3d 654 (5th Cir. 2000)
Henley v. Dillard Dept. Stores, 46 F. Supp.2d 587 (N.D. Tex. 1999)
Common Law - Right of Privacy-Appropriation Tort
YES
Texas recognizes a right to privacy, and the appropriation branch of the tort. It has adopted the Restatement (Second) of Torts. Under Texas law a plaintiff must establish three elements to make a misappropriation claim: (1) appropriation of the plaintiff’s “name or likeness for the value associated with it”; (2) the plaintiff can be identified from the publication; and (3) the defendant received “some advantage or benefit.”
A right to privacy was first recognized by the Texas Supreme Court in Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973).
Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895 (Ct. App. Tex. 2001)
Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489 (Ct. Civ. App. Tex. 1979)
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)
Post-Mortem Right
YES
A statute provides a property right in a deceased individual’s “name, voice, signature, photograph, or likeness” for fifty (50) years after death. The claim is limited to individuals who died on or after January 1, 1937. The right is treated as a fully, transferable property right.
The statute has registration provisions and appears to require registration to assert rights within the first year after a person’s death, though not thereafter. The common law tort appears not to be descendible. In Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489 (Ct. Civ. App. Tex. 1979), a Texas appellate court held that a brother could not assert his dead sister’s privacy interests to object to her portrayal in a motion picture about her murder.
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
LIKELY NO
Texas requires that a plaintiff’s name or likeness be used because of its value, but does not necessarily require that the person be a celebrity or that the person have an independently valuable public persona. Nevertheless, the required value needs to be rooted in the specific person’s identity and not in their “anonymity.” The post-mortem statute requires that a person’s “name, voice, signature, photograph or likeness” have a commercial value either at the time of death or thereafter.
Watson v. Talia Heights, LLC, 566 S.W.3d 326 (Tex. App. 2018)
Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895 (Tex. App. 2001)
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)
Does the law protect persona?
UNCLEAR
The post-mortem statute limits actions to uses of “name, voice, signature, photograph or likeness,” but the common law could sweep more broadly. Although no state court has broadened out liability beyond name or likeness, at least one federal court has suggested that any use that evokes a celebrity’s identity could give rise to liability. The Fifth Circuit, however, has concluded that the use of a person’s life story does not fit within the requirement of using a person’s name or likeness.
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)
Henley v. Dillard Dept. Stores, 46 F. Supp.2d 587 (N.D. Tex. 1999)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
LIKELY NOT
Although Texas courts have adopted the Restatement formulation which expressly allows for liability beyond commercial speech, at least one federal court has held that the tort is limited to uses for “commercial purposes” which it defined as commercial speech, specifically excluding motion pictures from appropriation claims.
Another federal court considered promotional segments for a motion picture to be commercial speech and motion pictures generally to meet the requirement of use for the defendant’s advantage, and therefore allowed a claim to proceed for uses of a person’s name and likeness in promotional segments for a film.
Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009)
O’Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. 2003)
Statutory Defenses
The post-mortem statute excludes uses in:
- plays, books, films, radio programs, or television programs
- magazine and newspaper articles
- material that is primarily of political or newsworthy value
- single and original works of art
- media enterprises (television stations, radio stations, newspapers, magazines) in connection with news, public affairs, sports, or political campaigns
- advertisements related to this exclusions
First Amendment Analysis
Texas sits in the Fifth Circuit which has had occasion to consider the interaction between the First Amendment and Texas’s misappropriation tort. In Matthews v. Wozencraft, the Fifth Circuit held that the First Amendment protected the use of a person’s name and identity in a motion picture based on a true story. Other courts have noted that incidental and newsworthy uses are protected against misappropriation of name or likeness claims, and that commercial speech receives lesser or no First Amendment protection in the context of such claims.
Texas courts have cited Matthews with approval. See, e.g., Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895 (Ct. App. Tex. 2001).
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)
Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009)
O’Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. 2003)
Other Commentary
Texas has a criminal statute that prohibits recording or photographing visual images of another person under certain circumstances and also makes it a crime to transmit or broadcast those images. The prohibition on taking photographs or recording visual images was recently struck down as in violation of the First Amendment. Of particular note, the court distinguished the statute from one that might protect professional performers from having their likeness or performances recorded.
The criminal prohibition is limited to a context with the intent to arouse or gratify sexual desire, unless the photographs are taken in a bathroom or “private dressing room” in which case the photographing is prohibited either with the intent to invade the person’s privacy or with the intent of sexual arousal. The provision was added in 2001 and has been amended several times since then. The Texas Court of Criminal Appeals suggested that the prohibition on transmittal or broadcast may be constitutional, even if the ban on taking photographs is not.
Ex Parte Ronald Thompson, 442 S.W.3d 325 (Ct. Crim. App. 2014)
The Fifth Circuit rejected a copyright preemption defense against the Texas misappropriation tort in the context of the use of musicians and songwriters’ names and likenesses in the context of selling copyrighted music recordings.
Brown v. Ames, 201 F.3d 654 (5th Cir. 2000)