University Case Study: Right of Publicity and Fair Use Analysis

This case study delves into the legal concepts of Right of Publicity and Fair Use, crucial in advertising and intellectual property law. It examines several real-world examples, including the 'Hangover II' tattoo dispute involving Mike Tyson, the Honda Super Bowl advertisement featuring multiple celebrities, the lawsuit filed by Muhammad Ali's estate against Fox for using his likeness, and the issue of athletes' tattoos in video games. The analysis highlights the key elements of Right of Publicity, which protects an individual's name, image, and likeness from unauthorized commercial use, and how it differs from Fair Use. The study discusses the legal implications of these cases, providing insight into copyright, advertising law, and the protection of individual identities, offering students a comprehensive understanding of these complex legal issues, supported by references to relevant legal precedents and scholarly resources.

RUNNING HEAD: RIGHT OF PUBLICITY AND FAIR USE
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Topic Name: Right of Publicity and Fair Use
Student’s Name:
University Name:

Right of Publicity and Fair Use
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Introduction
Right of publicity defends the name otherwise likeness of famous individuals, brands or
products. The claim or violation of rights of advertising is an offence which can be legal and
prevailing legislation, and it differs from state to state. The element which composes Right of
publicity is “forename, icon, and likeliness” & it differs in different countries. According to
Indiana's statue, the Right of publicity indicates to inherit “person's name, voice, autograph, pic,
image, resemblance, distinctive look, gesture or characteristic”. Right of publicity broadens to
every single person &not only famous individuals. Other than that, as a public subject, difference
of opinion in Right of publicity usually involves a celebrity, as they are the ones who have the
name and they are the icons which help to build and the products that are sold (King M., 2017)
Example1
“Hangover II, Mike Tyson, and copyright claims in a tattoo design”: The intriguing dispute
of a tattoo designer claiming a patent for the emergence of the infamous tattoo design of Mike
Tyson that appeared in Hangover II actor Ed Helms face. Though the tattoo appeared in the first
Hangover movie, there had been no objection because Mike Tyson made an appearance. But in
Hangover II Ed Helms gets a similar tattoo as that of Mike Tyson. So there had been a dispute
regarding the presence of the tattoo on the actor Ed Helms face. In this situation the Right of
Publicity cannot be implied because if we look at the first Hangover movie, we see that Mike
Tyson emerges in the film with the tattoo then that must also be an infringement. The designer
might stop Mike Tyson appearing into the cinema with the tattoo that could have been a defence
to the claim now, after the first movie of Hangover series. So claiming now about the rights of

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the tattoo in the second film of the series is not an ethical decision by the artist. (Belloni M.,
2011)
Example 2
Super Bowl LI: The Super Bowl advertisement is a big event, and the posters come out with
great anticipation. In 2017 the talking yearbook of "Honda Advertisement" featuring Tina Fey,
Steve Carell, Robert Redford, Amy Adams, Earvin "Magic" Johnson, Jimmy Kimmel, Missy
Elliott, Viola Davis, and Stan Lee. The yearbook images were there where we could identify
several people.
The event was not a Right to Publicity Act because Susie Rossick the assistant Vice-President of
Honda Marketing said that they had to go through several approvals to hire their photos. The
other photos were not from the yearbooks because the people were not very easy to find, so they
used the stock images of those persons. But the voice over which was given they were all
genuine and of the actual celebrities. So legally fulfilling all the condition, there would be no
imposition of Right to Publicity. (Super Bowl LI, 2017)
Example 3
“Fox Settles Lawsuit for Using Muhammad Ali to Hype Super Bowl”: The dispute between
Muhammad Ali Enterprise (MAE) and Fox of a three-minute preview video that appeared in
early 2017 super bowl which violated the public rights as well as represents out a fake
endorsement. MAE sued Fox of capitalizing the death of Ali by promoting a promotional video
and showing some old video-footage of Ali and citing him as “the greatest player of all the time”
the video mainly focused on the great examples set by Ali and the video then changes to the star

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players of NFL Joe Montana, John Elway and Vince Lombardi and compare them to Ali and
define them as NFL greatest players.
The Right of Publicity can be imposed on this situation because for many athletes, their lifetime
of work and achievement is their right of publicity. Allowing someone to use these rights without
approval or recompense will deprive an athlete of their identity, the ability to monetise the value
of the use of identity by license or agreement (Gardner E., 2018)
Example 4
Athletes’ tattoos, copyright, and who owns what: The players depicting the tattoos on the
video games are a subject of Right to publicity because in this case, the video game developers
create the tattoos of the athletes without taking their consent. In some instances, some video
game companies take the permission of the athletes and replicate their tattoos in their video
games. But in most of the cases, it doesn't imply as the video-game companies create tattoos
without the consent of the players. Many video-games companies have been sued due to the
illegal use of tattoo in their video games although the video games pay to copyright the music
but to reduce the burden of the cost they don't pay the copyright issue of the tattoo. Many cases
had done on companies like Take two, Solid Oak etc. So it is a matter of Right to publicity.
(Bailey J.M., 2018)

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References
Bailey J.M., Athletes Don't Own Their Tattoos. That's a Problem for Video Game Developers.
2018 Retrieved From
https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html
Belloni M., Warner Bros. Settles 'Hangover II' Tattoo Lawsuit (Exclusive) 2011 Retrieved From
https://www.hollywoodreporter.com/thr-esq/warner-bros-settles-hangover-ii-203377
Gardner E., Fox Settles Lawsuit for Using Muhammad Ali to Hype Super Bowl, 2018 Retrieved
From
https://www.hollywoodreporter.com/thr-esq/fox-settles-lawsuit-using-muhammad-ali-
hype-super-bowl-1127647
King M., WHAT IS RIGHT OF PUBLICITY? 2017 Retrieved From
https://www.traverselegal.com/blog/what-is-right-of-publicity/
Right of Publicity, (N.D.) Retrieved From
http://rightofpublicity.com/tag/fair-use