PHOENIX — Arizona’s appellate court on Thursday broadened the ability of
celebrities and everyday citizens to protect their name and image, ruling that a
person’s right to make claims of violations lasts even after death.
In a case of siblings at odds over online commentaries about their deceased
mother, the Court of Appeals ruled that any exploitation occurring posthumously
is cause for action.
The opinion likely marks the first time Arizona courts have drawn a clear line
about the extent of publicity law in the state, attorneys said.
David Bodney, a Phoenix attorney who specializes in media law and intellectual
property litigation, called the decision “groundbreaking.”
“The case is less cause for celebration by living celebrities than it may be
for their estates in cases involving real claims for misappropriation,” Bodney
However, the panel said in its ruling about the case involving battling
siblings that Robin Reynolds’ online article and blog post were considered
“expressive works” that don’t use Lois Reynolds’ name for commercial purposes.
According to court documents, Sylvia and Doug Reynolds said their sister
published personal details and a photo of their mother, Lois Reynolds, who died
in 2011, for financial gain. Robin Reynolds wrote about her aging mother’s daily
challenges with independent living in a 2010 online magazine story. Despite her
siblings’ objections, she posted a tribute after her mother’s passing in May
“When you write an expressive work and you happen to mention a real person,
that doesn’t in any way make it a right of publicity,” said Maria Crimi Speth,
an attorney representing Robin Reynolds. “If you can’t write blogs about your
mom, is everybody going to be sued on Facebook?”
A spokeswoman for Fennemore Craig, the firm that represented Sylvia and Doug
Reynolds, said attorneys would not be commenting.
Proving intent to profit through the use of an image would be crucial to making
a claim of publicity violation stick. As a result, those who use images for
reporting news or, like Robin Reynolds, commentary would be seen as exceptions,
“I would not sound the alarm about this decision because it recognizes that
expressive works that do not exploit the name or likeness of another person
commercially are not actionable,” Bodney said.
In an age of social media, it would also be difficult to sue anyone spreading
viral photos or images poking fun at celebrities or people they know.
“Even the broad recognition of this privacy claim does not eliminate the
protection of the First Amendment,” Bodney said. “The U.S. Supreme Court has
recognized that parody and satire are absolutely privileged under the First
Thanks to Instagram, Facebook and Twitter, putting a celebrity’s name or face
on a product isn’t the only way companies can get into trouble. Companies need
to be cautious about cyber-linking their goods or services to someone, Speth
A recent example of this is a lawsuit brought earlier this month by actress
Katherine Heigl against Duane Reade Inc. The Emmy-winning actress, known for
“Grey’s Anatomy” and “Knocked Up,” filed the lawsuit in federal court in
Manhattan and is seeking at least $6 million in damages.
According to the complaint, Duane Reade, a drug store chain, used a paparazzi
photo of Heigl on its Twitter and Facebook accounts for commercial gain despite
Publicity rights are not consistent state to state. The court’s ruling puts
Arizona on par with California publicity law. In other states a person’s right
to claim any misappropriation of image or identity expires upon death.
Follow Terry Tang on Twitter at https://twitter.com/ttangAP