I. Introduction
Imagine the following scenario: You are scrolling through Twitter or Facebook and an advertisement for Pepsi (or Coca-Cola) appears. The advertisement features a photo of a familiar face—yours. You do not remember any Pepsi representative asking to use your photograph, and you certainly do not remember getting paid to appear in this advertisement. You probably have two main questions: (1) How do you get Pepsi to stop circulating this advertisement, and (2) how do you get payment from Pepsi for the use of your image in this advertisement?
Ultimately, this hypothetical1 raises a critical issue: Is there a legal mechanism for people in this type of situation to prevent the unauthorized commercial exploitation of their identities? In most states, the answer to this question is yes, as these states have adopted some form of a right of publicity law that provides a mechanism for individuals to prevent unauthorized commercial uses of their identities.2 Iowa, however, is one of only 15 states which has not yet recognized the right of publicity in any form.3 So, if this advertisement was circulated in Iowa, you would have no clear mechanism to assert your legal rights. This lack of legal redress not only leaves Iowans vulnerable to commercial exploitations of their identities, but it also makes Iowans uncertain of their property rights in their identities.4
This Note argues that Iowa must adopt a right of publicity statute to adequately protect Iowans from the commercial exploitation of their identities. In Part II, this Note provides background on the right of publicity and specifically compares the state of Iowa’s right of publicity law to the rest of the United States.5 Part III explores the issues Iowans face regarding their identities due to the state’s nonexistent protections for the right of publicity.6 Finally, in Part IV, this Note proposes that Iowa’s legislature adopt a right of publicity statute.7 This Part details the necessary issues which Iowa’s statute must address8 and concludes with proposed statutory language for Iowa’s legislature to adopt.9
II. The Right of Publicity
The right of publicity “is the inherent right of every human being to control the commercial use of his or her identity”10—it is “a property right in one’s personality.”11 The right of publicity is a state law recognized in either common-law or statutory form.12 It falls under unfair competition law, making it an intellectual property right as opposed to a privacy right.13 In a case for “infringement of the right of publicity,” the plaintiff must show (1) she “owns an enforceable right in the identity or persona of a human being;” (2) the “[d]efendant, without permission, has used some aspect of identity or persona in such a way that [the] plaintiff is identifiable from [the] defendant’s use; and” (3) the “[d]efendant’s use is likely to cause damage to the commercial value of that persona.”14 Celebrities have commonly used this tort to prevent unauthorized uses of their identities;15 however, a plaintiff does not need to be famous to bring a right of publicity claim.16 This Part will first explore the history and origins of the right of publicity, as well as the fundamental justifications and primary concerns surrounding this right. This Part will conclude with a state survey of right of publicity laws, with a focus on the right of publicity in Iowa.
A. Origins of the Right of Publicity
To best understand the right of publicity, it is useful to consider the origins of its successor—the right of privacy. “The right of publicity is derived from the right of privacy . . . .”17 The right of privacy got its start around 1890 when Samuel Warren and Louis Brandeis published an article in the Harvard Law Review advocating for a common-law right of privacy—or an individual’s “right to be let alone.”18 The courts’ reactions to this idea were mixed.19 In 1902, a New York court rejected an attempt to recognize the common-law right of privacy,20 prompting the New York legislature to pass the first right of privacy statute in 1903.21 Despite the initial criticism, by the 1940s, American courts had generally accepted the right of privacy.22
In those early years, however, plaintiffs who wished to use the right of privacy tort to prevent unauthorized commercial uses of their likenesses faced difficulties, as many judges equated the privacy tort with the publication of embarrassing information.23 Under this view, many judges refused to recognize any harm apart from emotional harm.24 As a consequence, in cases involving well-known plaintiffs, judges could not rationalize how a person already in the public eye would experience any mental distress from commercial uses of her likeness.25 For example, in O’Brien v. Pabst Sales Co., David O’Brien, a famous football player, brought an invasion of privacy action against a beer company after his photo was included on a Pabst Blue Ribbon Beer marketing calendar.26 The Fifth Circuit upheld the district court’s ruling that O’Brien did not have a valid claim for invasion of privacy, stating “that any association of O’Brien’s picture with a glass of beer could not possibly disgrace or reflect upon or cause him damage.”27 This judicial line of thought forced well-known and unknown plaintiffs alike to frame their commercial right of privacy claims in terms of emotional harms, even though these plaintiffs really just sought adequate compensation for the commercial uses of their identities.28
The judicial confusion over the commercial application of the right of privacy ultimately led to the creation of the “right of publicity.”29 The Second Circuit first introduced this term in the 1953 case, Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., in which the court recognized that plaintiffs whose identities are misappropriated suffer commercial and financial harms and that these harms are just as valid as the emotional harms.30 By the 1970s, many courts recognized a common-law right of publicity, acknowledging the commercial value people had in their names and likenesses.31 Finally, in 1977, the U.S. Supreme Court recognized the right of publicity in Zacchini v. Scripps-Howard Broadcasting Co., cementing the right’s place as a valid legal cause of action.32
B. Policy Rationales for the Right of Publicity
In accepting the right of publicity as a valid legal rule, the Supreme Court acknowledged various policy rationales for this right.33 Three fundamental justifications for the right of publicity are: (1) protection of individuals’ natural and property rights; (2) provision of economic incentives and benefits to those individuals; and (3) prevention of deceptive and false advertisements.34
1. Natural Rights
A core principle behind the right of publicity is that a person’s right to control the use of her identity is “self-evident.”35 A person’s identity is her property, so she should have the power to control how other persons use it, including for commercial purposes.36 Under this theory, the basic idea is “that my identity is mine—it is my property to control as I see fit.”37 If companies are free to use an individual’s identity for commercial purposes, the individual will unjustly lose that chance to control and profit off her own identity (i.e., her property).38 Individuals have the fundamental right to receive proper compensation for uses of their property, and the right of publicity ensures that individuals can secure this compensation.39
Additionally, individuals have interests in “autonomous self-definition” and should be able to control how the public perceives them.40 The right of publicity allows an individual to “prevent[] unauthorized commercial uses of [her] identity that interfere with meanings and values that the public associates with that person.”41 It allows an individual to shape which meanings and values she would like the public to associate her with.42 For example, an individual may wish to avoid any fame or disclosure of her identity altogether, and the right of publicity allows her to do this.43
2. Economic Incentives
Another justification for the right of publicity is that the protection afforded will incentivize individuals to commercialize their identities.44 With this economic incentive, individuals are more likely to devote time and resources to “develop [their] personalit[ies] and pursue creative endeavors,” which in turn enriches society.45 Many courts view this incentive justification as the primary rationale for the right of publicity.46
Similarly, many economists reason that the right of publicity rests on a theory of economic efficiency. As the theory goes, protection of “a[n] [individual]’s identity will result in the best and most efficient use of that name and likeness.”47 In a state that recognizes the right of publicity, rather than any advertiser being able to use an individual’s identity for free, the advertiser who attributes the most commercial value to the individual’s identity will pay the highest price for the right to use the identity.48 Thus, the right of publicity helps an individual reap the full value of her identity through restrictions on the use of her identity.49
3. False Advertisements
An additional rationale for the right of publicity is that this “right . . . protects consumers from being deceived into thinking that a public personality has endorsed a specific product or service when that person’s identity has been used without permission.”50 The right of publicity acts as a legal barrier against both consumer confusion and harms to the individual caused by consumers associating the individual with a certain product.51 However, this justification does not have much support in the legal community because consumer confusion has no impact on the cause of action for the right of publicity, which focuses on the harm of the individual whose identity has been misappropriated rather than the consumers affected.52 The Lanham Act, which provides causes of action for false designation of origin and false advertising, better prevents false endorsements and false advertisements causing consumer confusion.53
C. Free Speech Concerns
Despite sound rationales, many scholars are concerned about whether the right of publicity could potentially conflict with the First Amendment’s protection of free speech.54 This concern is ever present as the right of publicity effectively limits speech by restricting certain uses of an individual’s identity.55 In Zacchini, the Supreme Court’s first and only case addressing the right of publicity, the Court acknowledged that courts and legislatures must balance the interests of the right of publicity with the interests of free speech.56 With this decision, the Court made clear that while lower courts must take First Amendment concerns into account, these concerns do not automatically outweigh the right of publicity.57 In response, courts have taken a variety of approaches to address the right of publicity’s conflict with free speech, from developing balancing tests to distinguishing between commercial and noncommercial speech.58
1. Balancing Free Speech and Right of Publicity Interests
The Supreme Court in Zacchini did not propose a specific balancing test,59 so courts have developed a variety of tests to balance the competing interests of free speech and the right of publicity, including (1) the predominant use test; (2) the Rogers test; (3) the transformative use test; and (4) the Eighth Circuit’s nature-injury balancing approach.60
First, the predominant use test provides that if the accused infringer’s predominant purpose for using the individual’s identity is to “exploit[] the commercial value of an individual’s identity,” then the accused use violates the individual’s right of publicity.61 In Doe v. TCI Cablevision, the Missouri Supreme Court adopted the predominant use test to determine whether a comic book creator had misappropriated famous hockey player Tony Twist’s right of publicity by naming a comic villain after him.62 The court concluded that the predominant use of Tony Twist’s name in the comic was to sell comic books rather than to create artistic value.63 So, the court rejected the comic book creator’s free speech defense, because the interests in protecting Twist’s right of publicity outweighed First Amendment concerns.64 However, courts outside of Missouri rarely use this test because asking courts to weigh the artistic value of uses of identity (or characters in comic books) is considered too subjective.65
Alternatively, the Rogers test, which the Second Circuit originally developed in the context of trademark law, focuses on whether the use of the plaintiff’s likeness or any reference to the plaintiff has any “artistic relevance” to the defendant’s work as a whole.66 Under this test, courts may afford First Amendment protection to a given artistic work unless it falls into one of two categories. First, if the reference to the plaintiff “has no artistic relevance to the underlying work whatsoever,” it will not be protected.67 Second, even if the reference does have some artistic relevance to the work, it will not be protected if it “explicitly misleads as to the source or the content of the work.”68
In Parks v. LaFace Records, the Sixth Circuit applied the Rogers test to a right of publicity claim brought by Rosa Parks against the musical group OutKast after it released a song titled Rosa Parks.69 Under the first prong of the Rogers test, the court considered whether the song title had any artistic relevance to the contents of the song.70 While the only lyric making any connection to Parks was “move to the back of the bus,”71 OutKast argued that “the song’s title was ‘metaphorical and symbolic.’”72 The court concluded that there was a genuine issue of fact and remanded the case to the district court to have the jury consider these issues.73 If the jury concluded that the song title had no artistic relevance to the contents of the song, then OutKast would be liable for infringement of Parks’ right of publicity.74 If the jury found that the song title was artistically relevant, then OutKast would only be liable if the jury concluded that the song title was “explicitly misleading as to the content of the [song].”75 Ultimately, the jury never got to consider these issues because Parks’ estate and OutKast ended up settling the case.76 Despite this prominent example, the Sixth Circuit has been the only court to apply the Rogers test to right of publicity claims.77 Most courts consider this test to be too narrow and ill-suited for the broad right of publicity.78
In contrast, the copyright-based transformative use test is the most commonly used balancing test.79 This test provides that the right of publicity does not apply to artistic works if “a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”80 For example, in Comedy III v. Saderup, the Supreme Court of California applied the transformative use test to the defendant’s sale of t-shirts containing charcoal drawings of the Three Stooges.81 The court held that the defendant’s work was not “sufficiently transformative” to afford First Amendment protection; his drawings were too literal, making their primary purpose the exploitation of the Three Stooges’ fame.82 However, some critics suggest that due to the vagueness of the transformative use test, courts should limit the scope of this test to instances when the accused infringer uses an artistic depiction of an individual’s image in a non-advertising context, i.e., the facts in Comedy III.83
Finally, the Eighth Circuit has adopted its own balancing approach in right of publicity cases, which “weighs the nature of the use against the likely injury to the publicity-holder.”84 For example, in C.B.C. Distribution v. Major League Baseball, the Eighth Circuit held that the First Amendment protected a fantasy sports company’s use of Major League Baseball players’ names and information (e.g., playing statistics and background data) in its fantasy baseball game.85 The court reasoned that this information was already in the public domain and had great “public value” due to baseball’s national importance.86 In the court’s view, this interest outweighed any potential injury to the baseball players who are already “rewarded, and handsomely, too, for their participation in games.”87
Unfortunately, these various balancing tests have produced inconsistent results among the circuits, with some approaches arguably providing better free speech protections.88 For example, the Ninth Circuit, using the transformative use test, held that the First Amendment did not protect the defendant’s use of college football players’ names and likenesses in a video game.89 This ruling seems to directly contradict the Eighth Circuit’s holding that the First Amendment protected the use of baseball players’ names and information in a fantasy baseball game.90
2. Commercial Speech
Apart from balancing tests, many courts use the distinction between commercial and non-commercial speech to adequately address free speech concerns.91 Courts generally offer less First Amendment protection to commercial speech because “[i]t deals with the sale of goods, and not with the promulgation of ideas.”92 Thus, for commercial speech, the right of publicity interests often outweigh the free speech interests.93
“[T]he ‘core notion of commercial speech’ is that it ‘does no more than propose a commercial transaction.’”94 However, many courts do not limit commercial speech to this core definition.95 Speech often contains both commercial and non-commercial elements, so courts consider factors such as “whether: (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech” when determining whether there is commercial speech.96 Once a court determines that an accused use is commercial speech, this conclusion often defeats any free speech defense against a right of publicity claim.97 That said, many courts have also allowed right of publicity claims for non-commercial speech.98
3. How Are State Statutes Addressing Free Speech?
States with statutory rights of publicity have taken various approaches to address First Amendment concerns in their statutes, rather than relying on the courts to conduct balancing tests.99 Under the most common approach, several states have outlined statutory exemptions to the right of publicity.100 For example, California provides statutory defenses for uses in the “news, public affairs, . . . sports broadcast . . . or any political campaign.”101 In contrast, Utah and Virginia provide no statutory defenses and thus rely on the courts to balance First Amendment interests.102
Many states have also taken the approach of specifically limiting their right of publicity causes of action to commercial activities.103 For example, Illinois’ law provides that “[a] person may not use an individual’s identity for commercial purposes.”104 The statute explicitly defines “[c]ommercial purpose” as “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.”105
D. The Current Landscape of Right of Publicity Laws: Iowa and Beyond
Due to the important purposes served by the right of publicity, many states have established a legal mechanism to allow individuals to enforce this right. Thirty-five of the 50 states have recognized the right of publicity in some form, either by statute or common law.106 Twenty-four states have a right of publicity statute,107 while 11 states only recognize the right at common law.108 Although the basic foundation of each state’s right of publicity is similar, the states vary greatly on certain provisions. For example, states disagree on who can bring a right of publicity claim and what types of uses constitute infringement of that right:
Some states limit their right of publicity to uses in advertising or in connection with products or services, or on merchandising, while other states allow claims arising out of virtually any use of a person’s identity, including uses in news, movies, books, video games, and political campaigns. Some states allow only those who are residents (domiciled) in the state (or were at the time of death) to bring claims. Others allow anyone to sue. Some states limit claims to those with commercially valuable identities, while others do not. Some states require the use of a person’s actual name, likeness, or voice, but others allow liability for any use that conjures up a person’s identity. Some states limit right of publicity actions to the living, while others allow heirs to bring claims on the basis of uses of a deceased person’s identity.109
In contrast to the majority of states, Iowa has not yet recognized a statutory or common law right of publicity.110 In 1999, an Iowa “district court . . . predicted that Iowa would recognize a[] . . . right of publicity,”111 but, more than 20 years later, that prediction has yet to come true.112 While not the same, Iowa does recognize a common law right of privacy and the invasion of privacy tort.113 The Iowa Supreme Court adopted the invasion of privacy tort based on the Restatement (Second) of Torts,114 which provides that “[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”115 Yet, no Iowa court has applied the misappropriation branch of the invasion of privacy tort in a case.116 Therefore, Iowans have no guidance on how to properly assert their rights in their identities.
III. Analyzing the Dangers Facing Iowans and Their Identities
This Part analyzes the dangers Iowans face with respect to unauthorized uses of their identities due to the nonexistence of a right of publicity law in the state. The main dangers the proposed right of publicity statute aims to resolve include (1) Iowans’ uncertainty about their intellectual property rights;117 (2) social media and deepfake technology, which make it easier for advertisers to misappropriate an individual’s identity;118 and (3) Iowa’s need for a neutral statute, devoid of special interest group bias.119
A. Iowans Need Certainty in Their Intellectual Property Rights
With no right of publicity law, Iowans have no certainty about their intellectual property rights in their personas. Theoretically, one could argue that Iowans have adequate protection over their personas under the misappropriation branch of the common law right of privacy,120 but no Iowa court has applied this branch of the doctrine.121 So, potential plaintiffs have no precedent to follow nor do they have any predictability under this theory, increasing the risks of an expensive litigation. In addition, as detailed in Section II.A, there has been ample judicial confusion over application of the right of privacy to commercial harms.122
Not only does this uncertainty make Iowans less inclined to litigate unauthorized uses of their identities, it makes Iowans less inclined to invest in and develop their identities.123 This idea is consistent with the incentive justification for the right of publicity: Without the right of publicity, individuals are less likely to commercialize their identities.124
One shift that demonstrates the increased need for Iowans to have certainty over their intellectual property rights in their identities is the recently proposed legislation to compensate student–athletes for uses of their names and likenesses. In response to the NCAA’s updated policy allowing college student–athletes to receive compensation for commercial uses of their names and likenesses125 and California’s Fair Pay to Play Act,126 several states have introduced legislation to provide compensation to student–athletes.127 On January 21, 2020, Iowa Senators Nate Boulton and Brad Zaun introduced a similar student–athlete compensation bill to go in effect in 2023.128 Under this bill,129 Iowa universities would not be allowed to prevent college athletes from profiting from their names and likenesses by precluding their eligibility.130
However, without a right of publicity statute, there is no clear mechanism for student–athletes to enforce their newly established rights to profit from commercial uses of their identities. If a company uses a student–athlete’s image in an advertisement without her consent, what legal redress does she have? Iowa conflicts with the majority approach, as most of the states that have introduced similar legislation have recognized the right of publicity in some form.131 The student–athlete compensation bill is directed primarily at the actions of universities and athlete eligibility, not the actions of third-party advertisers.132 Accordingly, it does not provide a mechanism for student–athletes to sue third parties for unauthorized commercial uses of their names and likenesses.133 Again, Iowa is behind the curve, leaving Iowa’s student–athletes uncertain about their rights.
With the proposed right of publicity statute, Iowans will have certainty about their rights and the incentive to create and make investments in their personas, ultimately benefiting society and promoting economic growth.134
B. Rise of Social Media and “Deepfake” Technology
Not only are Iowans uncertain about their rights in their personas, they are also vulnerable due to the ample publicity dangers associated with social media outlets and digital manipulation technology (more commonly known as “deepfake” technology). Given the pervasive prevalence of social media in Iowans’ lives as well as the recent rise in deepfake technology, it is easier than ever for advertisers to misappropriate an individual’s identity.135
Individuals are especially vulnerable to violations of their rights of publicity on social media platforms, which have become much more prevalent within the last decade.136 For example, in 2011, a group of plaintiffs sued Facebook for alleged violations under California’s right of publicity statute arising from Facebook’s use of “Sponsored Stories.”137 These “stories” were paid advertisements that appeared on Facebook users’ home pages, showing that one of the users’ friends had “liked” the advertiser, along with the friend’s profile, name, and photo.138 The plaintiffs’ claims survived Facebook’s motion to dismiss, with the district court finding that the plaintiffs alleged a sufficient commercial harm under California’s statute.139 Ultimately, Facebook ended up paying $20 million to settle this lawsuit.140 Additionally, social media users post personal information and photographs all over social media platforms, providing advertisers with easy access to individuals’ names and likenesses, which they may commercially misappropriate.141
In addition to the dangers posed by social media, individuals are also vulnerable to uses of “deepfake” technology to misappropriate their identities. Deepfake technology employs artificial-intelligence and machine-learning algorithms to create fake and doctored photos, videos, and recordings (“deepfakes”)142 “that look and sound just like the real thing.”143 Individuals use deepfakes to fool people into thinking that a particular person, often a celebrity, did or said something that he or she never actually did or said.144
Celebrities and non-celebrities alike are susceptible to uses of deepfake technology to doctor their identities into various types of situations, from pornographic material to advertisements. Some prominent examples of deepfakes include a doctored video of former President Obama calling Trump an expletive145 and fake pornographic scenes of Scarlett Johansson.146 Although political and pornographic uses of deepfake technology appear to be more common, advertisers can just as easily use deepfake technology to create a video or image of an individual endorsing a product.147 For instance, advertisers could create a fake video of Ashton Kutcher drinking a Busch Light beer or of Hawkeye football coach Kirk Ferentz talking about his love for Pancheros burritos.148 Although these types of doctored endorsements likely have not occurred in Iowa yet,149 it is important that the Iowa legislature preemptively addresses these concerns as Iowans (and not just actors like Kutcher) are vulnerable to this type of exploitation of their identities.
States have become increasingly concerned with the capabilities of this digital manipulation technology.150 For example, New York has recently introduced a bill to amend its right of publicity statute to “address[] the ability of technology to create digital avatars and make[] regulations regarding their use.”151 This amendment would make advertisers liable for uses of a “digital replica”152 of a deceased performer’s identity.153 The bill also addresses uses of digital manipulation technology to create pornographic material and makes these uses a violation of the right of privacy.154
In contrast, Iowa only protects its citizens from deepfake technology through criminal laws prohibiting the distribution of “photograph[s] or film[s] showing another person in a state of full or partial nudity or engaged in a sex act” without consent.155 Although this law does not expressly address digital manipulations, it likely would apply to pornographic deepfakes. These deepfakes comport to the words of the statute; nothing in the law says that the photographs have to show an act that the person actually did.156 However, this criminal law does not cover the main concerns the proposed right of publicity statute seeks to address—commercial exploitations of a person’s identity (e.g., Ashton Kutcher drinking a Busch Light).157 Even if Iowa had a criminal law to prohibit these commercial deepfakes, it would not properly compensate individuals for the use of their personas, hence the need for a civil cause of action.
C. Importance of a Neutral Statute
Iowa should not wait until the commercial exploitation of Iowans becomes more prevalent to adopt a right of publicity statute; it must adopt a neutral statute sooner rather than later. This vacancy not only leaves Iowans uncertain about their rights and vulnerable to deepfake uses of their identities, but it also leaves open the possibility that a special interest group will have too much influence in the drafting of the statute.158 Iowa needs to ensure that its right of publicity law protects the actual interest of Iowans, rather than the interests of free speech proponents or a specific industry.159
By way of example, this issue of special interest group bias plagued North Carolina’s attempt to pass a right of publicity statute.160 In 2009, the movie and video game industries took an active role in North Carolina’s right of publicity legislative efforts, seeking to modify the right’s language and narrow the scope of the right.161 For example, the bill included a video-game exception to the right of publicity after extensive lobbying efforts by the video game industry.162 This bill never passed, and North Carolina has yet to create a statutory right of publicity.163
Iowa must learn from North Carolina’s mistakes and adopt a neutral right of publicity statute that adequately protects the interests of Iowans, free from undue influence. If a certain company has too much influence in drafting the statute, the statute will protect that company’s rights to commercially misappropriate individuals’ identities, rather than adequately protecting individuals’ publicity rights, which is the primary purpose of a right of publicity statute. Right of publicity scholar Jonathan Faber said it best:
[I]t is only fitting for [Iowa] to have a right of publicity statute that is competitive with other states, rather than allow its law to be shaped by those who seek to commercialize rights of publicity interests without encumbrance or respect for the rights of the person from whom they seek to profit.164
IV. Iowa’s Right of Publicity Statute
To correct these deficiencies created by Iowa’s lack of right of publicity law and give Iowans certainty in their intellectual property rights, Iowa’s legislature should enact a right of publicity statute. As mentioned in Section II.D, the states with right of publicity statutes take many different approaches in addressing what protections the statute provides.165 Iowa needs to consider these approaches and produce a law that best suits Iowans’ specific interests. The most important issues to address in this statute include (1) who is protected by the right; (2) what is protected by the right; (3) whether this right should extend postmortem; (4) how the statute should address digital manipulation concerns; (5) First Amendment exceptions; and (6) available remedies.166 This Part will address each of these issues in turn, considering how other state statutes have addressed these questions and determining the best course of action for Iowa.167 This Part will conclude with proposed statutory language for Iowa’s right of publicity statute, which addresses these relevant issues.168
A. Who Is Protected?
One primary consideration is who is protected under the statute and hence who can bring a right of publicity claim in Iowa. A few state courts have suggested that the right of publicity only applies to celebrities.169 However, as discussed in Part II, the majority view is that the right of publicity extends to celebrities and non-celebrities alike.170 “Celebrity” a subjective term,171 and if an advertiser finds a “non-celebrity’s” persona valuable enough to misappropriate it, then that person should be able to bring a right of publicity claim.172 Additionally, in light of the increased prevalence of social media, “normal” people are just as vulnerable to violations of their rights of publicity as are celebrities.173 Therefore, Iowa’s right of publicity should extend to all persons—famous or not.
Moreover, some states limit their statutory protection to citizens of that particular state.174 For example, Alabama limits its statutory right to “natural person[s] . . . who at any time resided in this state or died while in this state or whose estate is, or was, probated in any county in this state.”175 However, most statutory rights of publicity do not provide this limitation and allow any person to bring a cause of action.176 Iowa should follow the majority of states and allow any person to bring a right of publicity claim under its statute. Iowa has an interest in protecting its citizens, but its interest should also extend to all persons whose personas are misappropriated within Iowa. For example, an advertiser should not be able to use an Illinois citizen’s persona within Iowa without any repercussions.177 Advertisers should know that Iowa will not tolerate the commercial misappropriation of any person’s likeness, no matter the person’s citizenship. One could argue that a citizenship limitation is essential to ensure that Iowa courts are not overcrowded with right of publicity suits. However, the rules of personal jurisdiction easily dispel these concerns.178 For example, a California citizen whose identity was used by an advertiser in California will not be able to bring a right of publicity claim in Iowa.179 Accordingly, Iowa should extend this right to every person, regardless of whether they are famous or citizens of the state.
B. What Is Protected?
Iowa’s right of publicity statute must also address what aspects of an individual’s identity the statute will protect. Most state statutes explicitly list out what aspects of an individual’s persona they protect. These lists generally include name and likeness, but states often extend this list to other protected attributes, including voice, signature, photograph, portrait, impersonation, image, distinctive appearance, gestures, or mannerisms.180 However, some courts have acknowledged the problems with these “laundry list[s]” of statutory-protected attributes.181 Most importantly, if there is a list of five protected attributes, advertisers will try to find a sixth identifiable characteristic outside of the statutory list.182
For this reason, Iowa’s statute should not limit what aspects of an individual’s identity it protects to a “laundry list.” Instead, it should follow the approach taken by Alabama and Pennsylvania in their statutes.183 Alabama’s right of publicity statute provides liability for commercial “use[s] of the indicia of identity of a person.”184 The statute defines “indicia of identity” as “those attributes of a person that serve to identify that person to an ordinary, reasonable viewer or listener” and provides examples of what types of attributes this language may cover.185 Iowa should take a similar approach by stating in its statute that the protected attributes are not limited to those listed in the statute, extending protection to any other “attributes . . . that serve to identify that person.”186 This approach will prohibit any strategic advertiser from avoiding statutory liability by misappropriating an identifiable characteristic outside of the statutory list. Additionally, this approach will prevent the need for Iowa’s legislature to constantly amend its statute as new forms of technological appropriation arise.
C. Postmortem Rights
Iowa’s legislature must also consider whether Iowa’s statutory right of publicity should extend postmortem, so that heirs or devisees may enforce an individual’s publicity after the individual dies.187 A majority of states with some form of right of publicity law extend this right postmortem. “[Twenty-six] states recognize a postmortem right of publicity: 18 by statute and eight by common law.”188 The main justification for extending this right postmortem is that “the right of publicity is a property right” not a personal right.189 Unlike personal rights, property rights are commonly transferable and descendible after death.190 Thus, the right of publicity should extend beyond death as well.191 Another theory supporting the postmortem right of publicity is unjust enrichment. That is, a third party should not be able to freely use an individual’s persona for commercial gain just because she died and, as a result, unjustly benefit from that individual’s death.192
Although the trend appears to be in favor of a postmortem right of publicity, some courts and scholars have declined to extend this right beyond death based on concerns about granting a potential monopoly to the heirs or devisees of the publicity-holder.193 For example, in Memphis Development Foundation v. Factors Etc., Inc., the Sixth Circuit held that Tennessee’s right of publicity did not extend beyond death.194 Applying the incentive rationale,195 the court reasoned that a postmortem right of publicity would not sufficiently encourage an individual to engage in creative activities to benefit society.196 Further, the court reasoned that an inheritable commercial right would create a small monopoly, whereas if this right were in the public domain, it would promote more economic growth.197
However, statutory limitations to the postmortem right will better balance these concerns about a monopoly with the valid justifications for a postmortem right. Because of these justifications (i.e., unjust enrichment and descendible property rights), Iowa’s statute should recognize a postmortem right of publicity, but the statute should also contain sufficient limitations to avoid monopoly and free speech concerns.
The next issue that follows is what limits Iowa’s legislature should place on the statute’s postmortem right. The states with statutory postmortem rights of publicity vary greatly in how they limit this right,198 creating many options for Iowa to consider. First, states vary in how they limit the duration of the right, i.e., in determining how many years after death an individual’s heirs or devisees may enforce this right.199 The duration of postmortem rights ranges from ten years to 100 years after death.200 However, some states allow the rights to continue beyond the statutory time period so long as the exploitation is continuous.201 While Tennessee’s postmortem right extends ten years after death, if the heirs or devisees of the right continually exploit the identity after this ten-year period, then the postmortem right may last forever.202 Second, some states distinguish between individuals who have valuable commercial identities and those who do not.203 For example, Washington extends its postmortem right ten years for an individual without a commercially valuable persona and 75 years for a “personality” (i.e., an individual with a commercially valuable persona).204 Finally, some states require heirs or devisees to register their claim to a deceased individual’s right of publicity to enforce the postmortem right against any infringers.205
Thus, the Iowa legislature should first consider the difficult query as to how long Iowa’s right of publicity should extend postmortem. Jennifer Rothman, a right of publicity scholar who has expressed some skepticism about extending this right postmortem, suggests that postmortem rights should last “no more than one generation, . . . [or] for a shorter postmortem period of ten to twenty-five years.”206 Rothman reasons that an overly broad postmortem right may grant the heirs or devisees of an individual’s right of publicity a “commercial windfall,” contradicting the fundamental purpose of the right.207 In light of this recommendation and to properly balance the previously mentioned justifications and concerns, Iowa’s statute should allow an heir or devisee to enforce an individual’s right of publicity for up to 25 years after that individual’s death.
Second, the Iowa legislature should consider whether the statute should provide greater protection for more commercially valuable personalities or require the continued commercial exploitation of the identity. The short answer is no. Iowa’s postmortem right of publicity should extend to all persons, famous or not. The intent of this statute is to provide Iowans (not just celebrities) with certainty about their intellectual property rights in their personas and to protect Iowans from unauthorized commercial uses of their identities—during life and death.208 Furthermore, the states that do require the continued commercial exploitation of the identity as a prerequisite to enforcing the right of publicity postmortem do so in regards to postmortem rights that may extend beyond the statutory limit and may last forever.209 With the limited duration of Iowa’s statutory postmortem right of publicity, there is no concern that an heir or devisee will “hoard” an individual’s identity without commercially exploiting it and preventing any commercial uses of the valuable identity for generations.210 Therefore, Iowa does not need an additional limitation for continued commercial exploitation.
Finally, Iowa’s legislature should determine whether the statute should require heirs or devisees to register with the state to enforce the postmortem right of publicity. Faber criticizes registry systems, as they only provide “nominal benefits and almost unavoidable drawbacks.”211 Heirs or devisees often do not know about or use these registry systems, and the systems in some states are full of false registrations.212 Due to the limited effectiveness and complications of the registration systems, Iowa should not require registration. However, Iowa’s statute should clarify in whom the postmortem right of publicity vests after an individual’s death. This approach will serve the purposes of a registration system—i.e., ensuring that the publicity right vests in the proper party—more efficiently while avoiding the considerable drawbacks. For example, Texas’ statute explicitly provides that if an individual did not transfer her right of publicity to another person either while she was alive or in her will, the right of publicity vests in the surviving spouse, children, or parents.213 Similarly, Iowa’s right of publicity statute should provide that if an individual has not transferred or devised her right of publicity, then Iowa’s intestate succession laws control in whom this right vests after the individual’s death. Specifically, the statute should state that the laws codified in the Iowa Code, title 15, chapter 633 control, particularly sections 633.210–633.212 and section 633.219.214
In summary, Iowa’s right of publicity statute should provide a postmortem right of publicity extending 25 years after an individual’s death, with no limitations regarding that individual’s fame or the continued commercial exploitation of her persona. Further, this statute should not require any registration system, but it should explicitly state that Iowa’s intestate succession laws apply regarding who inherits this right after an individual’s death.
D. How to Address Digital Manipulation
Iowa’s legislature must also consider how Iowa’s statute should address digital manipulation concerns. As addressed in Section III.B, deepfake technology makes it easier than ever for advertisers to misappropriate an individual’s identity, as they can depict an individual in a situation that never actually occurred.215 Thus, Iowa should take a proactive approach in its right of publicity statute to explicitly address these digital manipulation concerns. Currently, New York is the only state attempting to address deepfake technology in its right of publicity statute.216 In its bill to amend the right of publicity statute, New York provides right of publicity protections for “digital replica[s]” of deceased performers.217 Due to New York’s prevalence in the entertainment industry, this amendment is primarily concerned with expressive depictions of celebrities’ performances.218
While there are many talented Iowans,219 Iowa’s primary focus in addressing digital manipulation in its right of publicity statute should be to protect all Iowans from commercially damaging uses of their identities, rather than digital replicas of performances. But there is not much guidance in other state statutes specifically addressing this concern. Taking a similar but more inclusive approach than New York’s bill, Iowa’s statute should explicitly provide protection for “digital recreations” of an individual’s persona.220 With this express language, there will be no question whether the right of publicity applies to deepfakes. Additionally, due to the potential emotionally damaging effects of deepfakes,221 the statute should provide for increased penalties for these misappropriations to deter the misuse of this technology.222
E. Balancing First Amendment Concerns
Another issue for Iowa’s legislature to consider is how Iowa’s statute should address free speech concerns; specifically, whether the statute should delineate defenses to the right of publicity. As discussed in Section II.C.3, states that recognize a statutory right of publicity have taken different strategies to address free speech concerns, but the majority of these statutes carve out specific free speech defenses.223 Iowa should follow this majority trend and delineate free speech defenses in its right of publicity statute. Explicitly carving out statutory exemptions conforms with the primary goal of the right of publicity statute—creating more certainty in Iowans’ intellectual property rights. As discussed in Section II.C.1, courts have taken various approaches to balance free speech with the right of publicity, and many of these approaches are inconsistent, creating unpredictability for individuals and third parties who wish to use these individuals’ identities.224 For example, Iowa resides in the Eighth Circuit, which applies its own subjective balancing approach, “weigh[ing] the nature of the use against the likely injury to the publicity-holder.”225 Iowa should not leave these free speech concerns open to the subjective interpretation of the courts and should instead create more predictability for Iowans through statutory exemptions.
The next issue is what, if any, exemptions Iowa’s right of publicity statute should provide. While some states have more detailed statutory exemptions than others,226 most of these exemptions relate to uses that have newsworthy value, concern public affairs, or have expressive value (e.g., literary or artistic works).227 To derive the full benefits from the right of publicity statute,228 Iowa should limit its statutory exceptions to the core forms of speech that the First Amendment protects,229 rather than detailing an expansive list of exceptions. Iowa’s statute should explicitly provide that it does not apply to uses in the news, in expressive works, or in connection with public affairs. To further clarify these exceptions and provide more predictability, Iowa should define and provide examples for each of these exceptions, similar to the approach taken in Arkansas’ statute.230 Accordingly, Iowa’s statute should clarify that an “expressive work” may contain a literary work, artistic work, musical work, parody, or social commentary, and “uses in connection with public affairs” may include uses in a political campaign or informative uses of material with newsworthy and political value.231
As an example application of this statutory language, a news channel reporting on a recent celebrity’s death will not invoke right of publicity protections because this use constitutes a “use in the news” and an informative use of newsworthy material. However, a company capitalizing on a celebrity’s death with a promotional photo of the celebrity with the company’s product would not fit into the enumerated exceptions.232 This use of the celebrity’s name and likeness is not an informative use of material with newsworthy or political value; it is a commercial use of the celebrity’s identity for promotional purposes.
Along these lines, Iowa should follow the majority of state statutes and provide that unauthorized commercial uses of a person’s identity constitute a violation of the right of publicity.233 By limiting the scope of this right to commercial uses, the statute will further ensure the proper balance with free speech concerns.234 As with the statutory exemptions, Iowa’s statute should explicitly define what constitutes a commercial use of an individual’s identity. Following the approach of the Indiana and Illinois statutes, Iowa’s statute should define commercial use as a use in connection with any advertising, or offering a product or service for sale, or fundraising.235
In summary, Iowa’s right of publicity statute should balance free speech concerns by providing statutory defenses for uses in the news, in expressive works, or in connection with public affairs, and by limiting right of publicity causes of action to commercial uses of an individual’s identity.
F. Remedies
As there is no valuable right without a remedy,236 Iowa’s statute must address what remedies courts may provide to individuals whose identities have been misappropriated. Specifically, Iowa’s statute should provide (1) injunctive relief; (2) compensatory damages; (3) punitive damages; and (4) attorney’s fees as remedies for a violation of an individual’s right of publicity. This combination of remedies will provide the appropriate deterrent effect and encourage potential infringers to restrict their behavior in accordance with the statute.
Iowa’s statute should expressly state that the rights and remedies provided in the statute do not limit any other rights and remedies provided by law. Many state right of publicity statutes include a similar clause.237 Illinois’ statute articulates this point particularly well, stating that “the rights and remedies provided under this Act are supplemental to any other rights and remedies provided by law including, but not limited to, the common law right of privacy.”238 Iowa should adopt a similar clause specifying that the right of privacy is not limited under this statute. This clause is especially important in light of the recent emergence of deepfake technology.239 When a defendant violates a plaintiff’s right of publicity under this statute, particularly through the use of deepfake technology, the plaintiff will likely bring a common-law right of privacy cause of action to recover any additional emotional damages that may not fit into the statutory right of publicity.240 Adding this clause to Iowa’s statute will ensure that plaintiffs can recover the full extent of damages caused by the misappropriation of their identities.
1. Injunctive Relief
Many states explicitly provide for injunctive relief in their right of publicity statutes.241 For example, Florida’s statute provides that an individual whose right of publicity has been violated “may bring an action to enjoin such unauthorized publication, printing, display or other public use.”242 Most of the statutes providing injunctive relief utilize this type of language,243 with a few exceptions. Illinois’ statute references the portion of the Code of Civil Procedure governing the issuance of injunctions, declaring that a court may grant injunctive relief if the plaintiff has satisfied the specific elements of that law.244 Alabama’s statute simply states that “[a] violation of [the statute] is deemed to constitute a rebuttable presumption of irreparable harm for the purposes of injunctive relief.”245
Iowa should similarly provide injunctive relief as a remedy for a violation of an individual’s right of publicity to prevent any further misappropriation.246 More specifically, the statute should state that a court may grant injunctive relief to enjoin the unauthorized commercial use. In Iowa, “a party seeking an injunction must prove ‘(1) an invasion or threatened invasion of a right; (2) that substantial injury or damages will result unless the request for an injunction is granted; and (3) that there is [not another] adequate [means of protection] available.’”247 Any unauthorized use of a plaintiff’s identity that qualifies as a violation of the proposed statute will likely meet these requirements, so it is sufficient for the statute to provide injunctive relief without the restrictions employed in the Illinois and Alabama statutes.
2. Compensatory Damages
In addition to injunctive relief, Iowa’s statute must provide compensatory damages for an individual whose statutory rights are violated.248 There are two main issues that Iowa’s statute must address with regard to compensatory damages: (1) Should the statute allow collection of actual damages and/or infringer’s profits? If so, what should the statute require the plaintiff to prove with respect to these damages? And, (2) should the statute provide a minimum statutory limit for compensatory damages?
First, Iowa’s statute should explicitly provide compensatory damages for both the actual damages sustained by the plaintiff (e.g., the commercial value or fair market value of her identity or the damage to her professional reputation)249 and the defendant’s profits attributable to the unauthorized use. Most state statutes provide that plaintiffs may recover for actual damages and infringer’s profits, so long as the court does not use the infringer’s profits to calculate the actual damages.250 The main justification for allowing plaintiffs to recover the infringer’s profits is the theory of unjust enrichment: The defendant will be unjustly enriched if the court permits the defendant to profit from its unauthorized commercial exploitation of the plaintiff’s identity.251
Permitting the award of defendant’s profits presents another issue: What is the plaintiff expected to prove with regard to these profits? Most of the state statutes that speak to this issue provide that the plaintiff must submit evidence “of the [defendant’s] gross revenue attributable to such use,” but the defendant must provide evidence of “her deductible expenses.”252 Iowa’s statute should similarly provide that courts must calculate compensatory damages using the actual damages sustained by the plaintiff plus the infringer’s profits attributable to such use. To provide clarity and predictability to the parties and the courts, the statute should follow the trend of other state statutes and provide that the plaintiff must prove the “gross revenue attributable to the unauthorized use” when calculating the defendant’s profits, while the defendant may submit evidence of deductible expenses.253
The next issue to address is whether Iowa’s statute should provide a minimum statutory limit on recovery. Over 40 percent of the state right of publicity statutes provide a minimum statutory limit. Under these limits, a plaintiff may recover the prescribed statutory amount or the actual damages, whichever is greater.254 These statutory damages range from $750 to $10,000.255 As discussed in Section IV.A, Iowa’s right of publicity statute should protect all individuals, whether or not they are famous. However, non-famous individuals, especially those who have not commercially exploited their own identities, may have difficulty proving actual damages, or if they can prove some actual damages, these damages might be relatively small.256 These potentially low damages will do nothing to deter advertisers from commercially misappropriating these individuals’ identities.257 Accordingly, Iowa should adopt a minimum statutory limit of $2,500 to discourage the misappropriation of any individual’s identity and to ensure access to justice for all individuals, not just celebrities.
3. Punitive Damages
Iowa’s right of publicity statute should also provide punitive damages. These damages are especially important in light of the recent emergence of deepfake technology.258 Iowa’s statute must take a proactive approach to deter the use of this extremely harmful technology, and one way to do this is to provide punitive damages for any use of this technology in violation of the statute.259 Several state right of publicity statutes provide for punitive damages.260 While a few state statutes simply provide that a court may award punitive damages,261 most statutes require that the infringer acted knowingly, willfully, or intentionally in misappropriating an individual’s identity.262
Following this trend, Iowa’s statute should provide that a court may award punitive damages if the defendant knowingly used the plaintiff’s identity in violation of the statute. Further, Iowa’s statute must take a proactive approach to deter the use of the extremely harmful deepfake technology by expressly stating that any use of digital manipulation in violation of the statute warrants a grant of punitive damages. Both of these provisions will further deter infringers from misappropriating an individual’s identity.263
4. Attorney’s Fees
Finally, Iowa’s statute should allow for an award of attorney’s fees. Although the typical “American view” is that each party will pay for her own attorney’s fees,264 many states’ right of publicity statutes permit a plaintiff to recover attorney’s fees.265 Permitting recovery of attorney’s fees in Iowa’s statute will help to remove the burden of an expensive litigation for individuals (especially non-famous individuals) who wish to assert their rights of publicity.266 The judicial system should not permit advertisers to commercially exploit an individual’s identity without consequence just because a plaintiff cannot afford a lawsuit. This provision further ensures every individual will have access to justice under the right of publicity statute, not just well-off individuals.
G. Proposed Statutory Language
In light of the recommendations provided in Sections IV.A–.F, this Note proposes the following right of publicity statute for Iowa’s legislature to adopt:
Iowa’s Right of Publicity Act
Section 1. Definitions.
As used in this Act:
(a) “Right of publicity” means each individual’s right to control the commercial uses of the individual’s identity.267
(b) “Person” means any natural person or entity.268
(c) “Commercial purpose” means the use of an individual’s identity on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; for purposes of advertising or promoting products, merchandise, goods, or services; or for the purpose of fundraising.269
(d) “Individual” means any natural person, living or deceased.270
(e) “Indicia of identity” means any attribute that serves to identify an individual including, but not limited to, name, likeness, voice, or photograph.271
(f) “Expressive work” means a literary work, artistic work, musical work, parody, or social commentary.272
(g) “Uses in connection with public affairs” means uses in a political campaign or informative uses of material with newsworthy and political value.273
(h) “Digital manipulation technology” means technology or algorithms that can be used to create doctored and fictional videos, images, recordings, or other recreations depicting indicia of an individual’s identity.274
Section 2. Right of Publicity Recognized.275
(a) This Act establishes an individual’s right of publicity, which is each individual’s exclusive right to control the commercial use of the individual’s name, likeness, voice, photograph, or other indicia of identity.276
(b) An individual’s right of publicity extends twenty-five (25) years after the individual’s death and is freely transferable, descendible, and divisible. If an individual does not transfer the individual’s right of publicity at or before death, Title 15, Chapter 633 of the Iowa Code governs the succession of the rights provided in this Act.277
Section 3. Unauthorized Uses of an Individual’s Identity.
Except as otherwise provided in this Act, no person may use an individual’s name, likeness, voice, photograph, or other indicia of identity, or any digital replication thereof, for a commercial purpose, without consent, during the individual’s lifetime or for twenty-five (25) years after that individual’s death.278
Section 4. Exemptions.279
This Act does not apply to any use of an individual’s name, likeness, voice, photograph, or other indicia of identity:
(1) In the news;
(2) In an expressive work; or
(3) In connection with public affairs.
Section 5. Rights and Remedies.
(a) If the court finds a violation of an individual’s right of publicity under Section 3, the individual or owner of the individual’s right of publicity may recover and the court may order:
(1) An injunction to enjoin such unauthorized use;
(2) Actual damages caused by the unauthorized use or $2500, whichever is greater;
(3) Defendant’s profits attributable to the unauthorized use;
(4) Punitive damages; and
(5) Reasonable attorney’s fees and costs.280
(b) In determining the defendant’s profits, the plaintiff must prove the gross revenue attributable to the unauthorized use, and the defendant must prove deductible expenses.281
(c) When a person violates Section 3 through the use of digital manipulation technology, that person must pay punitive damages to the injured individual.282
(d) The rights and remedies provided in this Act are supplemental to any other rights and remedies provided by law including, but not limited to the common law right of privacy.283
V. Conclusion
The right of publicity is an individual’s inherent right to restrict and control the commercial use of her persona. Most states recognize the right of publicity in statutory or common-law form and provide their citizens with an enforcement mechanism to prevent the unauthorized commercial use of their identities. Iowa, however, is still among the minority of states that do not recognize this right in any form. Not only does this lack of right of publicity law leave Iowans uncertain about their intellectual property rights in their identities, it makes Iowans vulnerable to the misappropriations of their identities. Social media and the recent emergence of manipulation technology make it easier than ever for advertisers to commercially exploit an individual’s identity, leaving Iowans more susceptible than residents of other states to commercial exploitation of their personas.
Therefore, Iowa should adopt a right of publicity statute providing a mechanism for Iowans to enforce their rights in their personas. Iowa’s legislature should adopt this statute sooner rather than later to implement a neutral statute free from any special interest group’s control, and provide the best protections for Iowans. To provide these protections, Iowa’s statute should recognize each individual’s right of publicity, which should extend up to 25 years postmortem. The statute should also provide a mechanism for individuals to obtain injunctive relief and damages resulting from the unauthorized commercial use of their identities, while addressing free speech concerns.
Iowa is home to many unique, creative, and talented individuals, and all these individuals deserve proper protection for their identities. Iowa can provide this necessary protection and certainty by adopting this Note’s proposed right of publicity statute.