Georgia

In 1905, Georgia became the first state to recognize a common law right of privacy, including the appropriation branch of that tort. It also recognizes a common law right of publicity.

Statute

Common Law - Right of Publicity

YES

The Supreme Court of Georgia recognizes a right of publicity at common law. The right of publicity is the right to the “exclusive use of [one’s] name and likeness.” Liability arises when an unauthorized use of a person’s name or likeness is made for the purposes of “financial gain.”

Georgia primarily distinguishes the right of publicity and tort of appropriation on the basis of the identity of the party bringing the suit. Private figures have a privacy-based appropriation action, and public figures, a right of publicity.

Bullard v. MRA Holding, LLC, 740 S.E.2d 622 (Ga. 2013)

Martin Luther King, Jr., Ctr. for Soc. Change v. Am. Heritage Prods., 296 S.E.2d 697 (Ga. 1982)

Cabaniss v. Hipsley, 151 S.E.2d 496 (Ga. Ct. App. 1966)

Toffoloni v. LFP Pub. Grp., LLC,572 F.3d 1201 (11th Cir. 2009)

Somerson v. McMahon, 956 F. Supp.2d 1345 (N.D. Ga. 2012)

Common Law - Right of Privacy-Appropriation Tort

YES

Georgia’s Supreme Court was the first high court in the country to recognize the right to privacy, and did so in the context of a case in which a person’s likeness was appropriated without permission in an advertisement.

The Georgia Supreme Court recently suggested that a private figure needs to make a showing of special damages and can only recover for the value of the appropriation, not for dignitary injuries. This conclusion appears inconsistent with other decisions by Georgia courts and other states and undercuts a common distinction between the misappropriation claim and the right of publicity. Compare Bullard v. MRA Holding, LLC, 740 S.E.2d 622 (Ga. 2013) with Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905).

Bullard v. MRA Holding, LLC, 740 S.E.2d 622 (Ga. 2013)

Martin Luther King, Jr., Ctr. for Soc. Change v. Am. Heritage Prods., 296 S.E.2d 697 (Ga. 1982)

Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905)

Gettner v. Fitzgerald, 677 S.E.2d 149 (Ga. Ct. App. 2009)

Thomas v. Food Lion, LLC, 570 S.E.2d 18 (Ga. Ct. App. 2002)

Post-Mortem Right

Limits on Right

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

YES and NO

Georgia courts sometimes have suggested that an identity-holder needs a commercially valuable identity to bring a claim and noted that the right of publicity is reserved for public figures or celebrities. Even if a commercial value is required, the person need not have exploited that value to bring a claim. The appropriation claim does not require that a person have a commercially valuable identity.

Bullard v. MRA Holding, LLC, 740 S.E.2d 622 (Ga. 2013)

Martin Luther King, Jr., Ctr. for Soc. Change v. Am. Heritage Prods., 296 S.E.2d 697 (Ga. 1982)

Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905)

Pierson v. News Group Publications, Inc., 549 F. Supp. 635 (S.D. Ga. 1982)

Does the law protect persona?

UNCLEAR

Georgia cases consistently refer to “name and likeness,” but one state appellate court has broadened this out to include “identity, picture, papers, name or signature.” One recent decision by an appellate court suggests that the use of a trade name may give rise to a right of publicity claim. This same appellate court also endorsed decisions from other jurisdictions that have allowed broad claims based on uses of an individual’s persona.

Martin Luther King, Jr., Ctr. for Soc. Change v. Am. Heritage Prods., 296 S.E.2d 697 (Ga. 1982)

Shiho Seki v. Groupon, Inc., __ S.E.2d __, 2015 WL 4317129 (Ga. Ct. App. July 16, 2015)

Whisper Wear, Inc. v. Morgan, 627 S.E.2d 178 (Ga. Ct. App. 2006)

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

The use must be for some sort of “financial gain,” but need not be in advertising or commercial speech. Claims have been allowed in the context of a bust of a civil rights leader, postcards, and magazines.

Martin Luther King, Jr., Ctr. for Soc. Change v. Am. Heritage Prods., 296 S.E.2d 697 (Ga. 1982)

McQueen v. Wilson, 161 S.E.2d 63, rev’d on other grounds, 162 S.E.2d 313 (Ga. Ct. App. 1968)

Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905)

Toffoloni v. LFP Pub. Grp., LLC,572 F.3d 1201 (11th Cir. 2009)

First Amendment Analysis

Georgia courts have recognized that the First Amendment limits the right of publicity. Georgia, has not adopted a unique test for balancing the First Amendment and the right of publicity, but it has long recognized a newsworthiness defense. Georgia sits in the Eleventh Circuit which also has recognized newsworthiness and First Amendment defenses in the context of Georgia’s right of publicity. A federal district court also has suggested that most uses in expressive works will be protected from right of publicity claims by the First Amendment.

In Toffoloni v. LFP Publishing Grp., the 11th Circuit held that the publication of nude photos of a murder victim was not newsworthy.

Martin Luther King, Jr., Ctr. for Soc. Change v. Am. Heritage Prods., 296 S.E.2d 697 (Ga. 1982)

Waters v. Fleetwood, 91 S.E.2d 344 (Ga. 1956)

Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905)

Toffoloni v. LFP Pub. Grp., LLC,572 F.3d 1201 (11th Cir. 2009)

Somerson v. World Wrestling Entertainment, Inc., 956 F. Supp. 2d 1360 (N.D. Ga. 2013)

Thoroughbred Legends, LLC v. The Walt Disney Co., 2008 WL 616253 (N.D. Ga., 2008)

Other Commentary

A federal district court has held that Georgia’s right of publicity is preempted by copyright law, at least when the plaintiff’s claim is based on the use of his image in a copyrighted recording.

Somerson v. McMahon, 956 F.Supp.2d 1345 (N.D. Ga. 2012)

Page last updated on: September 24, 2015

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