Louisiana

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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 currently pending in the legislature as of March 2018

Statute 

YES – Deceased soldier only.

La. Rev. Stat. Ann. 14:102.21

Common Law - Right of Publicity 

NO

Common Law - Right of Privacy-Appropriation Tort 

YES

Jaubert v. Crowley Post-Signal, Inc. 375 So. 2d 1386 (La. 1979)

Tatum v. New Orleans Aviation Bd., 102 So. 3d 144 (La. Ct. App. 2012)

Post-Mortem Right 

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.

La. Rev. Stat. Ann. 14:102.21

Frigon v. Universal Pictures, 2018 WL 308150 (La. Ct. App., June 21, 2018) (not yet published)

Tatum v. New Orleans Aviation Bd., 102 So. 3d 144 (La. Ct. App. 2012)

 

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?

UNCLEAR 

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?

NO

Statutory Defenses 

The statute providing post-mortem rights for deceased soldiers does not provide any explicit defenses.

First Amendment Analysis 

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). 

Other Commentary 

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).

Page last updated on: November 02, 2018

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