Indiana recognizes both a statutory right of publicity and the common law tort of appropriation of name and likeness. The Indiana statute provides a post-mortem right for 100 years after death, including for those who died domiciled in other jurisdictions.
YES
Indiana recognizes a statutory right of publicity as a property interest in a personality’s “(1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gesture; or (9) mannerisms.” The rights recognized under the statute are divisible, “freely transferable and descendible.”
Ind. Code § 32-36-1-0.2 et seq. enacted July 1, 1994.
NO
No court to date has considered a right of publicity separate from the appropriation tort. The Indiana statute does not preempt the common law and therefore leaves open the possibility that such an independent common law right could be found.
YES
Indiana has long recognized a common law tort of invasion of privacy that includes the tort of appropriation of name or likeness. This right continues unimpeded after the passage of Indiana’s Right of Publicity Statute
Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001)
Cont'l Optical Co. v. Reed, 86 N.E.2d 306 (Ind. App. 1949)
YES
Under the Indiana statute, post-mortem rights are available for 100 years after a personality’s death. The post-mortem rights exist regardless of the deceased personality’s “domicile, residence, or citizenship” at the time of death. To be actionable, however, the use of the person’s identity must take place within the state. In 2012, the statute was amended to apply retroactively to personalities who died before the enactment of the statute (July 1, 1994). The common law tort of appropriation may also survive death, but no courts have specifically addressed the issue.
Ind. Code § 32-36-1-0.2 et seq.
Felsher v. Univ. of Evansville, 755 N.E.2d 589, 594 (Ind. 2001)
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
YES for statute
NO for common law appropriation tort
The Indiana Rights of Publicity Statute requires both living and deceased personalities to have commercial value in their identity, and expressly excludes personalities who have commercial value solely because of a criminal charge or conviction. In contrast, the tort of appropriation has applied to plaintiffs without commercially valuable identities.
Ind. Code § 32-36-1-0.2 et seq.
Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001)
Does the law protect persona?
YES, for “personalities”
Indiana’s statute provides broad protection for personalities, including protection for such aspects of a personality as “distinctive appearance,” “gesture[s]” and “mannerisms.” To date the appropriation tort has not been applied beyond the use of a name or likeness.
Ind. Code § 32-36-1-0.2 et seq.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
Although the Indiana Rights of Publicity Statute prohibits the use of a personality’s right of publicity for “commercial purpose,” it expressly includes uses in the context of “fundraising.” The appropriation tort is broader, allowing liability even if the use is not commercial in any sense. One case has suggested that if a use is only incidental or fleeting, then that use must have been directed at exploiting the identity holder’s “commercial value.”
Ind. Code § 32-36-1-0.2 et seq.
Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001)
Westminster Presbyterian Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859 (Ind. Ct. App. 2013)
The statutory right has many express exemptions from liability, including uses in news reporting and entertainment. The statute specifically exempts uses in “literary works, theatrical works, musical compositions, film, radio, or television programs,” “original works of fine art,” and in advertisements and promotional materials in connection with any of these uses. Uses that have political or newsworthy value or are in connection with a “topic of general public interest” are also protected. The statute also exempts uses in connection with personalities who have commercial value solely as a result of a criminal charge or conviction. Videogames have been included within the “literary works” exemption.
Dillinger, LLC v. Elec. Arts Inc., 795 F. Supp. 2d 829 (S.D. Ind. 2011)
There is no case law discussing First Amendment protections in connection with the Indiana Rights of Publicity Statute. Under the common law tort for invasion of privacy by appropriation, courts have recognized First Amendment protections, particularly on the basis of newsworthiness and matters of public interest. Indiana sits in the Seventh Circuit which has briefly considered First Amendment claims in the context of the misappropriation tort and right of publicity statutes. In one notable case, the circuit held that the First Amendment is no obstacle to a misappropriation of image claim when a magazine published nude photographs without permission.
Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985)
Time Inc. v. Sand Creek Partners, L.P., 825 F. Supp. 210 (S.D. Ind. 1993)
The statute provides statutory damages of $1,000 or actual damages.
Ind. Code § 32-36-1-0.2 et seq.
One court has required under the Indiana statute that the use be identifiable to consumers.
Ellington v. Gibson Piano Ventures, Inc., 2005 WL 1661729 (S.D. Ind. June 24, 2005)