Law School Case Brief
Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc. - 250 Ga. 135, 296 S.E.2d 697 (1982)
The appropriation of another's name and likeness, whether such likeness be a photograph or sculpture, without consent and for the financial gain of the appropriator is a tort in Georgia, whether the person whose name and likeness is used is a private citizen, entertainer, or as here a public figure who is not a public official.
Defendant Bolen sought the endorsement and participation of plaintiff Martin Luther King, Jr. Center for Social Change, Inc., in the marketing of a plastic bust. Although the Center refused the offer, Bolen pursued the idea, hiring an artist to prepare a mold and an agent to handle the promotion of the product. Bolen took out two half-page advertisements in the November and December 1980 issues of Ebony magazine, which purported to offer the bust as “an exclusive memorial” and “an opportunity to support the Martin Luther King, Jr., Center for Social Change.” The advertisement stated that “a contribution from your order goes to the King Center for Social Change.” Out of the $ 29.95 purchase price, defendant Bolen testified he set aside three percent or $ .90, as a contribution to the Center. The advertisement also offered “free” with the purchase of the bust a booklet about the life of Dr. King entitled “A Tribute to Dr. Martin Luther King, Jr.” The plaintiffs demanded that Bolen cease and desist from further advertisements and sales of the bust, filing for an injunction with the court. The district court found that the defendants had infringed the King copyrights and enjoined all further use of the copyrighted material. Nevertheless, the district court also confronted the plaintiffs' claim that the manufacture and sale of the busts violated Dr. King's right of publicity which had passed to his heirs upon Dr. King's death. The defendants contended that no such right existed, and hence, an injunction should not issue. The district court further found that “Dr. King apparently sold his copyrights in several speeches to Motown Records Corporation.” On appeal, the Eleventh Circuit Court of Appeals certified the question: Is the “right of publicity” recognized in Georgia as a right distinct from the right of privacy?
Is the “right of publicity” recognized in Georgia as a right distinct from the right of privacy?
The Supreme Court of Georgia indicated the right of publicity was distinct from the right of privacy and survived the death of its owner, without any requirement that the owner commercially exploited the right before he died. The Court held that the appropriation of another's name and likeness, whether the likeness was a photograph or sculpture, without consent and for the appropriator's financial gain, constituted a tort under state law, regardless of whether the person subjected to the appropriation was a private citizen, entertainer, or a public figure who was not a public official. The Court held that the right of publicity survived the death of its owner, and was inheritable and devisable. The Court held that the measure of a public figure's damages for violation of his right of publicity was the value of the appropriation to the user. The Court also held that the fact that decedent civil rights leader elected not to exploit his name and likeness during this lifetime did not give others the right to use his name and likeness after his death, and did not strip his family and estate of the right to prevent unauthorized exploitation of the right by others.
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