Pennsylvania
Pennsylvania has a statutory right of publicity. It is likely that the common law right of publicity remains after its adoption, but this has not been definitively decided to date.
Several courts have suggested, without deciding the issue, that the common law right of publicity also remains a viable claim.
Hepp v. Facebook, Nos. 20-2725 & 2885 (3rd Cir., Sept. 23, 2021)
Hamilton v. Speight, 413 F. Supp.3d 423 (E.D. Pa. 2019), appeal docketed (3d Cir.)
Statute
YES
Pennsylvania has a statutory right of publicity that covers both the living and the dead if their name or likeness has “commercial value” against the “unauthorized use of name or likeness” when used “for any commercial or advertising purpose.” In 2014, Pennsylvania also added a separate statute that bans the “unlawful dissemination of intimate image[s].”
Pennsylvania’s right of publicity statute was signed on December 9, 2002 and went into effect sixty days later. The more recent intimate image law provides statutory damages of $500 or actual damages, if greater.
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 and the Third Circuit recently suggested that they can co-exist, Hepp v. Facebook (3rd Cir. 2021).
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.
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).
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.))
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
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.
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
YES
The statute excludes from liability:
- parties in publishing, manufacturing, producing or distribution business who did not have actual knowledge of unauthorized uses.
- uses as a member of the public when the particular individual is not “named or otherwise identified”
- used in news having a “public interest” or related advertisements
- uses in expressive works and original works of art or related advertisements
- uses in relation to identifying authors or performers in which the underlying use of the work is authorized.
“Expressive works” are defined as “literary, dramatic, fictional, historical, audiovisual or musical works[s]” regardless of their medium of communication.
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. Recently, the Third Circuit suggested that the First Amendment might require evidence of likely confusion as to sponsorship for liability to survive First Amendment review. Hepp v. Facebook (3rd Cir. 2021)
Hepp v. Facebook, _____ (3d Cir. 2021)
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)
The Third Circuit has held that the statutory right of publicity constitutes a form of “intellectual property” and that CDA Section 230 does not bar such claims from proceeding against interactive computer services.
Hepp v. Facebook, _____ (3d Cir. 2021)
Last updated on March 14th, 2022