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What’s In a Name?

Recently, a federal district court in Connecticut allowed The Cousteau Society, Inc. to proceed with a post-mortem Right of Publicity claim against the granddaughter of Jacques-Yves Cousteau. Cousteau was a well-known French oceanic explorer and marine conservationist who died in 1997. Prior to his death, he had transferred all of his intellectual property rights, including various registered and unregistered trademarks, and his right of publicity, to The Cousteau Society, Inc., a New York non-profit corporation established to promote Cousteau’s legacy.

Cousteau’s granddaughter, Celine Cousteau, produced a documentary entitled Celine Cousteau, The Adventure Continues and a film entitled Tribes on the Edge. In the promotional material for those works, she used her grandfather’s name and image, referenced her grandfather’s ship, The Calypso, used images of individuals wearing her grandfather’s trademarked red cap, and included a photograph of her grandfather hugging a Celine when she was young. The Cousteau Society brought suit against Celine for, among other claims, infringing her grandfather’s Right of Publicity.

Applying French law, because Jacques-Yves Cousteau was a resident of France at the time of his death, the Court concluded that his Right of Publicity would survive his death, but only because he had assigned it to The Cousteau Society prior to his death. The Cousteau Court’s conclusion is contrary to the Sixth Circuit’s conclusion in Memphis Dev. Found. v. Factors Etc., Inc., 616 F.2d 956 (6th Cir. 1980). In that case, the Appellate Court ruled that, under Tennessee law, Elvis Presley’s Right of Publicity did not survive his death and was not inheritable or assignable.    

Right of Publicity issues also arise in Ohio. In 1999, Ohio enacted R.C. 2741, which codified the Right of Publicity, and which prohibits a party from using someone’s “persona” (defined to include an “individual's name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value”) for a “commercial purpose” without that individual’s consent. R.C. 2741.01 and .02. Under the statute, the Right of Publicity exists during the individual’s lifetime and for sixty years after the individual’s death. Moreover, the Right of Publicity is freely transferable and descendible, in whole or in part. R.C. 2741.04.

A recent appellate court decision clarified that an individual’s persona must have commercial value for that individual to bring a claim. See Harvey v. Sys. Effect, LLC, Case No. 28497, 2d App. Dist. Montgomery, 2020-Ohio-1642. In that case, the plaintiff had previously been sued for fraud in connection with the sale of her home. The fraud case was eventually reversed on appeal, but before it had been reversed, Systems Effect referenced the plaintiff’s name and the facts of her fraud case in a training video for real estate agents as a warning to agents to be vigilant in making all necessary disclosures. Harvey sued Systems Effect under the Ohio Right of Publicity statute. The Court ruled that she could not bring a claim under the statute because, while she need not be a “national celebrity” to bring a claim under the statute, she must nevertheless demonstrate that there is value in associating an item of commerce with her identity. Harvey had repeatedly argued that she was not a public figure, but had merely sold a house to a private buyer in a private sale. As such, she was not in a position to claim that the defendant had misappropriated her Right of Publicity.

The lesson from these cases is that the Right of Publicity is still relatively new and not yet fully developed. Use of another person’s name or likeness, even if the individual is deceased or a relative, for commercial purposes poses some real risks. As Celine Cousteau has learned while trying to follow in her grandfather’s footsteps, adventures in uncharted waters can be dangerous. 

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