Texas

Texas recognizes both a common law right to prevent the appropriation of one’s name or likeness, and a statutory post-mortem right of publicity.

Statute 

YES, post-mortem only

The statute provides a property right in a deceased individual’s “name, voice, signature, photograph, or likeness” for fifty (50) years after death.  The claim is limited to individuals who died on or after January 1, 1937 and to uses “in connection with products, merchandise, or goods” or “for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services.”  There is a statutory damages provision of $2,500.

Common Law - Right of Publicity 

YES

The right appears synonymous with the privacy-based appropriation tort.

Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Ct. Civ. App. Tex. 1975)

U.S. Life Ins. Co. v. Hamilton, 238 S.W.2d 289 (Ct. Civ. App. Tex. 1951)

Brown v. Ames, 201 F.3d 654 (5th Cir. 2000)

Henley v. Dillard Dept. Stores, 46 F. Supp.2d 587 (N.D. Tex. 1999)

Common Law - Right of Privacy-Appropriation Tort 

YES

Texas recognizes a right to privacy, and the appropriation branch of the tort.  It has adopted the Restatement (Second) of Torts. Under Texas law a plaintiff must establish three elements to make a misappropriation claim: (1) appropriation of the plaintiff’s “name or likeness for the value associated with it”;  (2) the plaintiff can be identified from the publication; and (3) the defendant received “some advantage or benefit.”

Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895 (Ct. App. Tex. 2001)

Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489 (Ct. Civ. App. Tex. 1979)

Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)

Post-Mortem Right 

YES

A statute provides a property right in a deceased individual’s “name, voice, signature, photograph, or likeness” for fifty (50) years after death.  The claim is limited to individuals who died on or after January 1, 1937. The right is treated as a fully, transferable property right.

Limits on Right 
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

LIKELY NO

Texas requires that a plaintiff’s name or likeness be used because of its value, but does not necessarily require that the person be a celebrity or that the person have an independently valuable public persona.  The post-mortem statute requires that a person’s “name, voice, signature, photograph or likeness” have a commercial value either at the time of death or thereafter. 

Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895 (Ct. App. Tex. 2001)

Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)

Tex. Prop. Code § 26.003

Does the law protect persona?

UNCLEAR

The post-mortem statute limits actions to uses of “name, voice, signature, photograph or likeness,” but the common law could sweep more broadly.  Although no state court has broadened out liability beyond name or likeness, at least one federal court has suggested that any use that evokes a celebrity’s identity could give rise to liability.  The Fifth Circuit, however, has concluded that the use of a person’s life story does not fit within the requirement of using a person’s name or likeness.

Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)

Henley v. Dillard Dept. Stores, 46 F. Supp.2d 587 (N.D. Tex. 1999)

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

LIKELY NOT

Although Texas courts have adopted the Restatement formulation which expressly allows for liability beyond commercial speech, at least one federal court has held that the tort is limited to uses for “commercial purposes” which it defined as commercial speech, specifically excluding motion pictures from appropriation claims. 

Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009)

O’Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. 2003)

Statutory Defenses 

The post-mortem statute excludes uses in:

  • plays, books, films, radio programs, or television programs
  • magazine and newspaper articles
  • material that is primarily of political or newsworthy value
  • single and original works of art
  • media enterprises (television stations, radio stations, newspapers, magazines) in connection with news, public affairs, sports, or political campagins
  • advertisements related to this exclusions

Tex. Prop. Code § 26.012 Permitted Uses

First Amendment Analysis 

Texas sits in the Fifth Circuit which has had occasion to consider the interaction between the First Amendment and Texas’s misappropriation tort.  In Matthews v. Wozencraft, the Fifth Circuit held that the First Amendment protected the use of a person’s name and identity in a motion picture based on a true story.  Other courts have noted that incidental and newsworthy uses are protected against misappropriation of name or likeness claims, and that commercial speech receives lesser or no First Amendment protection in the context of such claims.

Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)

Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009)

O’Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. 2003)

Other Commentary 

Texas has a criminal statute that prohibits recording or photographing visual images of another person under certain circumstances and also makes it a crime to transmit or broadcast those images.  The prohibition on taking photographs or recording visual images was recently struck down as in violation of the First Amendment.  Of particular note, the court distinguished the statute from one that might protect professional performers from having their likeness or performances recorded.

Ex Parte Ronald Thompson, 442 S.W.3d 325 (Ct. Crim. App. 2014)

Tex. Pen. Code § 21.15

The Fifth Circuit rejected a copyright preemption defense against the Texas misappropriation tort in the context of the use of musicians and songwriters’ names and likenesses in the context of selling copyrighted music recordings.

Brown v. Ames, 201 F.3d 654 (5th Cir. 2000)

Page last updated on: September 14, 2015