Louisiana Right of Publicity Moves Forward

By Professor Jennifer Rothman

This blog post originally appeared on Rothman's Roadmap to the Right of Publicity.

The proposed “Allen Toussaint Legacy Act” has passed another hurdle in the Louisiana legislature. The bill passed the House last week and was sent to the Senate Judiciary Committee yesterday. The Act is named after the famed New Orleans musician, songwriter and producer, who died in 2015. The proposed law provides individuals with a “property right in the commercial use” of their names, voices, signatures, photographs, and likenesses.

The law problematically provides that this property right is “freely transferable, assignable, licensable, and heritable.” As I have warned elsewhere, such laws provide an avenue for individuals to lose control over their own identities forever if they assign their property right to third-parties like record labels or movie producers, or sports leagues. In addition, estate taxes on such fully transferable property may force heirs to commercialize the identities of the deceased even if that violates the wishes of the deceased and his heirs.

The law is limited to natural persons, but includes both the living and dead. The post-mortem right provided in the bill applies without regard to lifetime exploitation and lasts for fifty years after death, adding to the panoply of different durations for post-mortem rights across the country, ranging from ten to forty to five to 100 years to forever. It is, however, limited to actions brought by those domiciled in or residents of the state.

The proposed Act defines a “commercial use” as the “use of an individual’s readily identifiable name, voice, signature, photograph, or likeness . . . for advertising, selling, or soliciting purchases of products, merchandise, goods, or services” or “on or in connection with products, merchandise, or goods.” Notably, the law excludes from the definition of “commercial use” uses in data collection, licensing, reporting, or processing. This means that the law cannot be used to protect a person’s information privacy. This may be one of the first laws to exclude such uses and closes a big door in Louisiana that individuals could have used to protect unwanted uses of their identities, particularly on the basis of the collection and aggregation of their online data.

The law would exclude service providers from liability in the absence of “actual knowledge” of the offending use―likely to address some courts’ holdings that right of publicity laws do not fall within the protections of the Communications Decency Act § 230. Section 230 protects internet service providers from secondary liability, but excludes intellectual property laws from its scope. To make sure of this result, the proposed statute also expressly states that the right is not meant to be considered “intellectual property” for purposes of the Communications Decency Act. Despite such language cropping up in recent right of publicity bills states cannot determine how this federal law should be interpreted.

The bill has a broad list of speech-related exclusions which will likely make the motion picture, television, news, and music businesses happy. The bill excludes from liability uses in “connection with a news, public affairs, or sports broadcast, . . . or a political campaign,” as well as uses in expressive works, such as plays, books, musical works, audiovisual works, or if a use has “political, public interest, or newsworthy value including a comment, criticism, parody, satire, or a transformative creation of a work of authorship.” The law also excludes advertisements for any of these works. It will be interesting to see if these speech-protections can apply to transformative, satirical or parodic advertising. The law also excludes institutions of higher education and nonprofit organizations.

The law preempts any common law right of publicity in Louisiana―of which there is currently none, but does not make clear whether it also preempts the privacy-based appropriation tort which has been expressly recognized by Louisiana courts. Louisiana to date has only had a post-mortem right for deceased soldiers that is provided for by statute.

This law appears likely to pass, but hopefully they can fix its many downsides before it does.There are broad protections for the movie studios and Google, but few protections for individuals who purportedly it should be protecting. The bill does not provide for statutory damages and makes the rights fully transferable and subject to seizure by creditors and ex-spouses. In fact, the bill likely excludes even its name-sake. Touissant’s heirs may not be able to take advantage of the very law likely to pass in his name given that he died before its likely effective date and there is no retrospective provision.