Arizona
Arizona state and federal courts recognize the right of publicity at common law. Arizona has two statutes recognizing a right of publicity for soldiers, but no statute for civilians.
Statute
YES—For soldiers only.
Arizona does not have a general statutory right of publicity, but in 2007 passed both civil and criminal right of publicity laws to specifically prevent the use of the “name, portrait or picture” of soldiers for “commercial purposes.”
Ariz. Rev. Stat. § 12-761 (Civil)
Ariz. Rev. Stat. § 13-3726 (Criminal)
Common Law - Right of Publicity
LIKELY YES
At least one state appellate court has ruled that there is a common law right of publicity. The state supreme court, however, has not yet ruled on the existence of a distinct right of publicity.
In re Estate of Reynolds, 327 P.3d 213 (Ariz. Ct. App. Div. 1 2014)
Common Law - Right of Privacy-Appropriation Tort
YES
Reed v. Real Detective Pub. Co., 162 P.2d 133 (Ariz. 1945)
In re Estate of Reynolds, 327 P.3d 213 (Ariz. Ct. App. Div. 1 2014)
Post-Mortem Right
LIKELY YES
One appellate court has held that the right of publicity is descendible, even if not exploited during life.
In re Estate of Reynolds, 327 P.3d 213 (Ariz. Ct. App. Div. 1 2014)
The soldier statute § 12-761 expressly provides a descendible right and § 13-3726 only applies to deceased soldiers.
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
NO
Does the law protect persona?
No court has considered the issue.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
Unclear
No court has explicitly limited the right under Arizona law to commercial speech, but one state appellate court has excluded from the right noncommercial commentary. The statutes that protect soldiers’ identities exclude from liability uses that are for “noncommercial” or expressive “purposes,” such as news, sports broadcasts, films, plays and books.
In re Estate of Reynolds, 327 P.3d 213 (Ariz. Ct. App. 2014)
Ariz. Rev. Stat. § 12-761 (Civil)
Ariz. Rev. Stat. § 13-3726 (Criminal)
Statutory Defenses
Soldiers
Expressive works (i.e. books, films, plays, music)
Noncommercial purposes (news, public affairs, sports broadcasts)
Truthfully identifying soldier as an author or performer
Photographic exhibitions (as long as no objection has been raised by rights-holder)
Soldier is not facially identifiable
Photos of monuments and memorials placed on goods
First Amendment Analysis
Arizona sits in the Ninth Circuit which has had occasion to consider the interaction between the First Amendment and the right of publicity under California law. The Ninth Circuit has adopted a variety of tests for assessing First Amendment tests in such instances, including California’s transformative use test, and a broader balancing approach.
In re NCAA Student-Athlete Litigation, 724 F.3d 1268 (9th Cir. 2013)
Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001).
[A federal district court deciding a right of publicity case under Arizona law concluded that where there was a “commercial use,” which the court meant as “commercial speech,” there is no First Amendment defense. Though this is unquestionably wrong as a matter of First Amendment law, the court tried to salvage this erroneous analysis by suggesting that there was an “implied false connection” made by the advertisement which would arguably place the commercial speech into the false category. Pooley v. Nat’l Hole-in-One Ass’n, 89 F.Supp.2d 1108 (D. Ariz. 2000)]