
Nebraska recognizes a statutory right of privacy, including a cause of action for the exploitation of a person for advertising or commercial purposes. The state also provides post-mortem rights by statute.
NO
Prior to the enactment of the statute, Nebraska did not recognize a common law right of publicity.
Carson v. Nat'l Bank of Commerce Trust & Sav., 501 F.2d 1082 (8th Cir. 1974)
NO
Prior to the enactment of the statute, Nebraska did not recognize a common law right of privacy.
Schoneweis v. Dando, 435 N.W.2d 666 (Neb. 1989)
Brunson v. Ranks Army Store, 73 N.W.2d 803 (Neb. 1955)
YES
The Nebraska statute establishes a post-mortem right of publicity. The statute does not address duration, implying that the right may continue indefinitely.
Although the statute does not provide rules for transfer or ownership of the right of publicity, it allows a surviving spouse or a personal representative of the deceased to consent to publicity. It is not clear whether this provision usurps the possibility of a transfer via testamentary means.
Nebraska’s statutory right of privacy provides a number of exceptions, including:
- Uses in news, and noncommercial advertisements with current or historical public interest
- Resale or distribution when the underlying use is authorized
- Uses when a person appears in a photograph as a member of the public
- Uses when consent is expressly given, or implied
- Other constitutional and statutory defenses, including defenses that apply to defamation claims
- Defenses to privacy claims derived from other states
Miller v. American Sports Co., Inc., 467 N.W.2d 653 (Neb. 1991)
In the context of other privacy claims, the Nebraska Supreme Court has recognized that the claims are limited by the First Amendment.
Schoneweis v. Dando, 435 N.W.2d 666 (Neb. 1989)
Nebraska is within the jurisdiction of the Eighth Circuit Court of Appeals which has adopted a balancing test to weigh free speech concerns against the interests of publicity holders. In C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 503 F.3d 818 (8th Cir. 2007), the circuit held that fantasy sports leagues’ use of baseball players’ names and statistics is protected by the First Amendment.
C.B.C. Distrib. & Mktg v. MLB Advanced Media, L.P., 503 F.3d 818 (8th Cir. 2007)