New Jersey

New Jersey does not have a right of publicity statute. The state recognizes a common law right of  of privacy and the appropriation branch of the tort.  Federal courts have treated this as synonymous with a right of publicity and New Jersey courts have treated the right to one’s name and likeness as a transferable property right.

Statute 

NO

Common Law - Right of Publicity 

YES

Federal courts have held that New Jersey would recognize a right of publicity and at least one state court has suggested that “celebrity goodwill” is a recognized property right in the state.

Hart v. Elec. Arts. Inc., 717 F.3d 141 (3d Cir. 2013)

Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)

Piscopo v. Piscopo, 231 N.J. Super. 576 (1988)

Common Law - Right of Privacy-Appropriation Tort 

YES

New Jersey has long recognized a right to privacy and a property right in one’s name and likeness.

Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Sup. Ct. 1967)

Edison v. Edison Polyform Mfg., 73 N.J. Eq. 136 (1907)

Post-Mortem Right 

LIKELY YES

Although no state court has so held, federal courts applying New Jersey law have recognized that the common law right of publicity and/or appropriation claims are descendible.

McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)

Estate of Presley v. Russen, 513 F.Supp. 1339 (D.N.J. 1981)

Thelonious Monk Jr. v. North Coast Brewing Co., CV-05015-HSG (N.D. Cal., Jan. 31, 2018)

Limits on Right 
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

NO

Faber v. Condecor Inc., 477 A.2d 1289

Jarvis v. A & M Records, 827 F. Supp. 282 (D.N.J. 1993)

Does the law protect persona?

LIKELY YES

Federal courts have extended protection under New Jersey law in the context of characters associated with actors and the use of voice and vocal style.

McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)

Prima v. Darden Restaurants Inc., 78 F. Supp. 2d 337, 344 (D.N.J. 2000)

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

NO

New Jersey’s appropriation tort requires a use for “trade purposes” which has been interpreted as a commercial use, but it has never been limited to “commercial speech.”  

Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689 (App. Div. 1982)

Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Sup. Ct. 1967)

Hart v. Elec. Arts. Inc., 717 F.3d 141 (3d Cir. 2013)

Presley’s Estate v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)

First Amendment Analysis 

New Jersey courts have recognized that the First Amendment is a defense to the right of publicity and the Third Circuit Court of Appeals has adopted the transformative use test to evaluate conflicts between the First Amendment and New Jersey’s right of publicity.

Hart v. Elec. Arts. Inc., 717 F.3d 141 (3d Cir. 2013)

Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986)

Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689 (App. Div. 1982)

F.D. v. Kenny, 15 A.3d 200 (N.J. 2011)

Other Commentary 

At least one New Jersey Court has recognized that “celebrity goodwill” is property that must be included the martial property to be divided upon the dissolution of a marriage.

Piscopo v. Piscopo, 231 N.J. Super. 576 (1988)

A federal district court held a right of publicity claim preempted when the heart of the claim was based on the use of a copyrighted work.

Jarvis v. A & M Records, 827 F. Supp. 282 (D. N.J. 1993)

Page last updated on: February 01, 2018

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