Before Aug. 1 of last year, when companies came to law firms around the state to ask what legal complications might surround a new ad campaign featuring, say, iconic Alabama baseball player Satchel Paige, the answer was always, “We’re not sure.”
Ads or publicity campaigns that featured famous or semi-famous people were often canceled because no one was sure how much work might be required to ensure no laws were broken over the use of images or likenesses. Alabama had no codified right of publicity, so all attorneys had to go on was common law and previous legal decisions, leaving such questions as: How famous do you have to be in Alabama for your privacy to be protected? How long might those protections last after you die? What damages could be claimed if a company uses your name or likeness in a media campaign without your permission?
Balch & Bingham attorneys Loren Lancaster and Will Hill Tankersley were part of the effort last year to develop Alabama-specific answers to these questions. A blue ribbon legislative drafting committee of the Alabama Law Institute helped craft the new law, which provides a cause of action for commercial exploitation of a person’s name or likeness.
The new law had its roots, according to Tankersley, in a problem that arose in publicity surrounding the 50-year observance of the 16th St. Baptist Church bombing. The KKK bombing killed four little girls, partially blinded another and helped spur the Civil Rights Movement nationwide.
As the church prepared for the 50-year observance of the bombing in 2013, a relative of Cynthia Wesley made public protestations that publicity surrounding the event failed to note the loss suffered by her biological family, whose name was Morris. The little girl had been adopted shortly after her birth, a fact that likely would never have come to light save for the tragic circumstances of her death.
For its part, the church promptly made changes to address the family member’s concerns. “But it’s the type of thing that lawyers look at all the time, ” Tankersley says. “Who has control of a name and likeness in a situation like that? Do you have to be famous? Do any protections last past your life and what are the damages for such a wrong?”
The law provides limited ability to protect one’s name, image or likeness from commercial false endorsement. It includes: protection that lasts 55 years after death; “fair use” defense that offers broad public interest protections to sporting event broadcasting, and additional statute of limitations time if the wrongful act is not discovered within two years.
The big thing for Alabama small businesses to know about the new law is that for the first time it affords much clearer guidance about what is in bounds and what is out of bounds when it comes to using a recognizable name or likeness for a commercial purpose. If that business is using a recognizable name or likeness without permission, that business needs to make sure that activity fits into one of the defenses in the act, particularly in the case of a fundraising or solicitation of donations, and advertising or selling goods — regardless of whether the business is for profit or not.
Text by Dave Helms