Pennsylvania

Statute

Common Law - Right of Publicity

YES

Pennsylvania courts have distinguished between misappropriation claims of private citizens, decided under a right to privacy rubric, and those of public figures, decided under a right of publicity frame. The status of the common law right is unclear after the passage of the 2002 statutory right of publicity. The Third Circuit has suggested that it is now subsumed within the statutory right, but a number of district courts have concluded otherwise.

In the context of public figures who have commercial value in their name or likeness, the courts have treated the right as one of property, in contrast to privacy-based claims which have treated claims as personal injuries.

Hogan v. A.S. Barnes & Co., Inc., 1957 WL 7316 (Pa. Ct. Pleas 1957)

Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008)

Lewis v. Marriott Intern., Inc., 527 F. Supp. 2d 422 (E.D. Pa. 2007)

Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013)

Common Law - Right of Privacy-Appropriation Tort

YES

Pennsylvania recognizes a right to privacy and the appropriation branch of that tort.

Vogel v. W.T. Grant Co., 327 A.2d 133 (Pa. 1974)

Hull v. Curtis Pub. Co., 125 A.2d 644 (Pa. Super. 1956)

Post-Mortem Right

YES

The statute provides a thirty (30) year term for post-mortem rights. The person must have died as a domicile of Pennsylvania.

Pa. Ann. Stat. tit. 42 § 8316

Limits on Right

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

YES

The statute limits claims to individuals whose likenesses or names have “commercial value.” The statute defines “commercial value” as a “valuable interest” in the name or likeness that is “developed through the investment of time, effort and money.” The common law is likely broader in scope and the privacy-based appropriation tort has no such requirement.

The statute appears to exclude anyone who isn’t actively commercializing her identity. A federal court has allowed a business professional well known in her field to qualify as having a commercially valuable identity. Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013).

Pa. Ann. Stat. tit. 42 § 8316

Does the law protect persona?

UNCLEAR

The statute is expressly limited to the use of name or likeness, but those terms are defined to include and not be limited to, “name, signature, photograph, image, likeness, voice or a substantially similar imitation.” No cases appear to raise the issue at common law.

One recent case applied the statute to an avatar in a videogame, but made no holding on the question. See Hamilton v. Speight, 413 F. Supp.3d 423 (E.D. Pa. 2019), appeal docketed (3d Cir.))

Pa. Ann. Stat. tit. 42 § 8316

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

The statute defines “commercial or advertising purpose” as a use “on or in connection” with the sale of goods, services, merchandise or businesses; for the purpose of advertising or promoting such items; and for the purpose of “fundraising.” The Third Circuit has applied the statute to the making of videos that promote the sale of video games. In the context of common law right of publicity claims, state courts have allowed claims in the context of books and related advertising. The privacy-based tort has applied without regard to whether a use is for a commercial purpose.

Pa. Ann. Stat. tit. 42 § 8316

Hogan v. A.S. Barnes & Co., Inc., 1957 WL 7316 (Pa. Ct. Pleas 1957)

Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008)

Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013)

Statutory Defenses

First Amendment Analysis

Prior to the adoption of the statutory right, the Pennsylvania Supreme Court held that biographies were excluded from the common law misappropriation tort and Pennsylvania courts have recognized that the right to privacy is limited by concerns over the freedom of speech.

Corabi v. Curtis Pub. Co., 273 A.2d 899 (Pa. 1971)

Hull v. Curtis Pub. Co., 125 A.2d 644 (Pa. Super. 1956)

Pennsylvania sits in the Third Circuit Court of Appeals. The Third Circuit has adopted the transformativeness test for analyzing a First Amendment defense to right of publicity claims in the context of New Jersey’s right of publicity. Other federal courts have considered First Amendment concerns in the context of Pennsylvania’s right of publicity and concluded that merchandise parodying professional wrestlers was protected by the First Amendment, as was the use of a civil rights activist’s name and likeness in a movie, and book, though not necessarily on the cover of the CD to the soundtrack.

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

Pellegrino v. Epic Games, Inc., __ F. Supp. ___, 2020 WL 1531867 (E.D. Pa. 2020)

Hamilton v. Speight, 413 F. Supp.3d 423 (E.D. Pa. 2019), appeal docketed (3d Cir. 2019)

World Wrestling Fed. Entm't v. Big Dog Holdings, 280 F. Supp.2d 413 (W.D. Pa. 2003)

Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996)

Other Commentary

The Third Circuit has held that Pennsylvania’s right of publicity is not preempted by the Copyright Act.

Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008)

Page last updated on: July 07, 2020

The Book

THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World

This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.

Now Available

Also available at Target and Walmart