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 

NO

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.”

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. 

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 

YES

The Georgia Supreme Court has held that the right of publicity survives death and is inheritable and devisable without regard to whether a person exploited the right prior to death.

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

Bell v. Foster, 2013 WL 6229174 (N.D. Ga. 2013)

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

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?

NO

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.

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

The Book

Privacy Reimagined For A Public World

THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World

This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.

Now Available

Available at Amazon Buy Now At Barnes & Noble

Also available at Target and Walmart