Washington
Washington provides for both a right to privacy and right of publicity by statute. Its post-mortem rights extend without regard to the domicile of the deceased. At one point, the state expressly rejected a right of privacy at common law, but has since adopted one.
Statute
YES.
Section 63.60 et seq. protects personality rights under Washington Law. The law provides that “[e]very individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness.” Rights can be asserted without regard to place of domicile. The right is violated by uses “on or in goods, merchandise, or products entered into commerce” in Washington state, or that are used to advertise products, merchandise, goods or services, or for purposes of “fundraising or solicitation of donations.”
The statute went into effect June 11, 1998 and is retroactive, as long as claims are filed after the effective date.
Common Law - Right of Publicity
UNCLEAR.
Several decisions by the Washington Supreme Court have protected individuals from the nonconsensual uses of their names or likenesses under a property-based rubric, and no Washington court has suggested that the statute preempts common law rights.
State ex rel LaFollette v. Hinkle, 229 P.317 (Wash. 1924)
Lewis v. Physicians and Dentists Credit Bureau, 27 Wash. 2d 267 (1947)
Common Law - Right of Privacy-Appropriation Tort
YES
Although there were some early suggestions that the state rejected a common law right to privacy, the state has confirmed its recognition of common law privacy torts, including the appropriation branch.
Reid v. Pierce Co., 961 P.2d 333 (Wash. 1998)
Mark v. Seattle Times, 635 P.2d 1081 (Wash. 1981)
Hillman v. Star Pub. Co., 117 P.594 (Wash. 1911)
Post-Mortem Right
YES
The statute provides for post-mortem rights without regard to place of domicile at time of death. A “personality” is someone whose “name, voice, signature, photograph, or likeness had commercial value” at the time of death. The post-mortem period is ten (10) years for individuals and seventy-five (75) years for personalities. Privacy rights at common law have also sometimes been deemed to extend to surviving relatives.
Experience Hendrix LLC v. Hendrixlicensing.com Ltd., 762 F.3d 829 (9th Cir. 2014)
Reid v. Pierce Co., 961 P.2d 333 (Wash. 1998)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
YES and NO
Both inter vivos and post-mortem rights exist without regard to commercial exploitation by the claimant. To gain the benefit of the greater protection afforded to personalities (particularly post-mortem), the individual must have “commercial value” in her “name, voice, signature, photograph, or likeness.”
Does the law protect persona?
YES
The statutory right includes protection against the use of “distinctive appearance, gestures, or mannerisms”
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The state right of publicity statute expressly allows liability without regard to whether “the use or activity is for profit or not for profit.” Misappropriation of name or likeness claims have also been held to apply outside the context of commercial speech.
Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp.2d 1104 (W.D. Wash. 2010)
State ex rel LaFollette v. Hinkle, 229 P.317 (Wash. 1924)
Statutory Defenses
The statute exempts:
• uses “in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including . . . comment, criticism, satire and parody”
• single and original works of art
• literary, theatrical and musical works, film, television, online and radio programs
• news and sports accounts
• political campaigns, so long as there is no false endorsement
• advertisements for any exempted use
• descriptive fair uses
First Amendment Analysis
Washington state sits in the Ninth Circuit which has had occasion to consider the interaction between the First Amendment and the right of publicity under California law. The Ninth Circuit has adopted a variety of tests for assessing First Amendment tests in such instances, including California’s transformative use test, and a broader balancing approach.
In re NCAA Student-Athlete Litigation, 724 F.3d 1268 (9th Cir. 2013)
Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001).
Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp.2d 1104 (W.D. Wash. 2010)
Other Commentary
• The rights to control the use of one’s “name, voice, signature, photograph, or likeness” are “freely transferable, assignable, and licensable” property rights.
• The state provides statutory damages in the amount of $1,500.
• The law indicates that rights of publicity constitute community property.
• Claims under the statute have a three-year statute of limitations
Wash. Stat. § 4.16.080; Biklia v. Vibram USA, Inc., 218 F. Supp.3d 1206 (W.D. Wash. 2016)