Louisiana has a criminal right of publicity statute that protects deceased soldiers. Otherwise, the state only recognizes a privacy-based tort of misappropriation. A new right of publicity bill that provides for post-mortem rights is failed by one vote in 2019.
YES – Deceased soldier only.
Frigon v. Universal Pictures, 255 So.3d 591 (La. App. 2018), writ denied, 262 So.3d 896 (La. 2019)
YES and NO
The criminal right of publicity statute for deceased soldiers provides post-mortem rights exclusively for soldiers. This post-mortem right is not limited in duration.
Claims under the state’s misappropriation tort, however, have thus far been held not to survive death.
Frigon v. Universal Pictures, 255 So.3d 591 (La. App. 2018), writ denied 262 So.3d 896 (La. 2019)
Tatum v. New Orleans Aviation Bd., 102 So. 3d 144 (La. Ct. App. 2012)
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
Does the law protect persona?
The statute for soldiers expressly limits liability to circumstances in which the “name, portrait, or picture” of a deceased soldier is used.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
The statute providing post-mortem rights for deceased soldiers does not provide any explicit defenses.
Louisiana uses a balancing test for weighing privacy interests against speech interests. Louisiana sits in the Fifth Circuit Court of Appeals which has held that the First Amendment protects against misappropriation claims in the context of biographical works, at least where the information was in the public domain, the plaintiff was a public figure and the use was not a “disguised commercial advertisement.”
Plaquemines Parish Comm’n Council v. Delta Dev. Co., 472 So. 2d 560 (La. 1985).
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994).
An appellate court in Louisiana has held that consent to the use of one’s name or likeness is time-limited. In the context of a photograph, the court held that ten years after consent was given continued consent could no longer be presumed.
McAndrews v. Roy, 131 So. 2d 256 (La. Ct. App. 1961).