Attorney Yakkub Hazzard (Robins, Kaplan, Miller & Ciresi) explains how publicity rights work and are enforced by law. This is one of the best overviews on how the system protects each and every individual's visual rights. This is information that every professional athlete should have been given by their League, their Union and/or their agent. NOT! Retired football players have had their rights consistently hijacked by the NFL and are now suing the League and NFL Films to recover their rights, royalties and damages. This presentation was given at the 2013 Independent Football Veterans Conference in Las Vegas May 3 - 5, 2013 and can be viewed at DavePear.com.

1. Who Owns You
By Yakub Hazzard
Co-Chair
Entertainment & Media Group
Robins, Kaplan, Miller & Ciresi L.L.P.
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Celebrating 75 Years of Providing National Legal Solutions

2. Right of Publicity
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3. WHO AM I
• Co- Chair of Entertainment and Media Group
• Practicing Law Since 1990, primarily in
entertainment field
• Representative clients include Estates of
Ray Charles and Sammy Davis Jr., Snoop,
Jamie Foxx, Weezer among others
• Most Important I am the son of…..
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4. A Former Professional Athlete
• Walt Hazzard
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5. Doctrines Protecting “Publicity” Interests
Trademark
Common Law
Right of “Identity”
Publicity
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Statutory
Right of
Publicity
“name, voice, signatures,
Photograph, or likeness
• Living persons
• Deceased persons

6. Right of Publicity
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• Creature of State Law

7. List of States with Common Law
(Judge-Made) Publicity Rights
• Alabama
• Arizona
• California
• Connecticut
• Florida
• Georgia
• Hawaii
• Illinois
• Kentucky
• Michigan
• Minnesota
• Missouri
• New Hampshire
• New Jersey
• Ohio
• Pennsylvania
• South Carolina
• Texas
• Utah
• West Virginia
• Wisconsin
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At least 21 States in total have expressly
recognized the right of publicity:

8. COMMON LAW RIGHT OF PUBLICITY
• Elements:
1) Defendant’s use of plaintiff’s identity;
2) The appropriation of plaintiff’s name or
likeness to defendant’s advantage or
otherwise;
3) Lack of consent: and
4) Resulting injury.
• See Eastwood v. Superior Court, 149 Cal.App.3d
409 (1983); White v. Samsung Electronics
America, Inc., 971 F.2d 1395 (9th Cir. 1992)
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9. States with Right of Publicity
Statutes
• California
• Florida
• Indiana
• Kentucky
• Massachusetts
• Nebraska
• Nevada
• New York
• Ohio
• Pennsylvania
• Rhode Island
• Tennessee
• Texas
• Utah
• Virginia
• Washington
• Wisconsin
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10. STATUTORY RIGHT OF PUBLICITY
• Cal. Civil Code §3344
– Any person who knowingly uses another’s
name, voice, signature, photograph or likeness
on or in products, merchandise, or goods, or for
purposes of advertising or selling, or soliciting
purchases of, products, goods or services
without such person’s prior consent shall be
liable for any damages sustained.
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11. States That Recognize Rights Of
Publicity For Deceased Persons
• California
• Connecticut
• Florida
• Georgia
• Illinois
• Indiana
• Kentucky
• Michigan
• Nebraska
• Nevada
• New Jersey
• Ohio
• Oklahoma
• Pennsylvania
• South Carolina
• Tennessee
• Texas
• Utah
• Virginia
• Washington
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12. WHAT YOU CAN GET FOR A VIOLATION
1) Actual Damages
2) Profits or Unjust Enrichment
3) Attorneys’ Fees and Costs (under statutes
that allow them)
4) Punitive Damages
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13. DEFENSES
1) News Accounts/Commentary
2) Expressive Artistic Works
3) Transformative Uses
4) Life Stories
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FIRST AMENDMENT PROTECTIONS

14. EXAMPLES OF CASES
INVOLVING ATHLETES
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15. 71
71
Winston
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Motsenbacher v. R.J. Reynolds Tobacco Co.
• Use of photo of car in TV commercial
• Motsenbacher not recognizable
• Claim allowed to go to jury

16. 16
Montana v. San Jose Mercury News, Inc.
• Paper included poster of newspaper accounts of 49ers
two SuperBowl wins
• Newspaper wins – newsworthy just like original story

17. Abdul Jabbar v. General Motors Corp.
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• GM ran ad including trivia question, the answer to which was LEW ALCINDER
• Case allowed to go to jury

18. Gionfriddo v. Major League Baseball
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• Defendants used retired baseball players’ publicity rights and career
statistical information, including video clips of plaintiffs playing.
• Court found that First Amendment noncommercial speech conveying
historical information about plaintiffs’ careers trumped plaintiffs’ publicity
rights.

19. Image Size Issue Date Issue Size Issue Price Current Retail
19 ½ x 25 ½ 4/98 250 700.00 $1,200.00
Jireh Publishing
Online Store
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• Court found that use was transformative and entitled
to 1st Amendment Protection

20. 2 cases, 1 game, opposite results:
• Keller v. EA Sports, Federal Court in Los Angeles
• Court rejects transformative first amendment defense; rules in
favor of athletes
• Hart v. EA Sports, Federal Court in New Jersey
• Court accepts transformative first amendment defense; rules
against athletes
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21. QUESTIONS
• But not about Dryer v. NFL
• That’s tomorrow
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