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September 27, 2022

Queen's Death Gives Birth To A Flood Of NFTs And A Question About The Right Of Publicity

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With the passing of Queen Elizabeth II, the crypto space has been flooded with memecoins and NFTs portraying the Queen. As one might expect, the creators behind these projects are unlikely to have sought or obtained permission in connection with the use of the Queen's image on such projects. But is permission required?

In the US, an area of the law one might look to in dealing with the use of celebrity images is the law of the right of publicity, which protects against the misappropriation of a celebrity's (or non-celebrity's) name, likeness, or other indicia of personal identity. Unlike trademark or copyright laws which protect a person's creation, the right of publicity protects the person's persona itself. The right is generally based on the law of the state of the individual's domicile. Some states have codified the right by statute (e.g., New York, California) whereas others offer only common law protection (e.g., Connecticut, Georgia), and still others have yet to rule on whether the right exists at all (e.g., Iowa, Kansas). And each state has varying rules regarding whether the right of publicity continues to confer protection post-mortem, i.e., after the person's death. For example, New York provided no postmortem protection until a statutory amendment that went into effect in May 2021.

In the case of the Queen, she was the Queen of the UK and other Commonwealth realms, with her primary residence in the Buckingham Palace in London. Under English law, there appears to be no such thing as a right of publicity, much less a postmortem right of publicity. (Incidentally, that was one of the reasons why a California federal court in Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013 (C.D. Cal. 1998) and Cairns v. Franklin Mint Co., 120 F. Supp. 2d 880 (C.D. Cal. 2000), refused to grant relief to the estate of Diana, late princess of Wales, in the estate's lawsuit alleging various claims including the violation of right of publicity against an American company manufacturing and selling Diana memorabilia.)

Any protection of the Queen's image would accordingly have to be provided under other laws. In this regard, the use of the Queen's image and other insignia are regulated through a set of guidelines issued by the Lord Chamberlain's Office called the "Guidance on the Use of Royal Arms, Names, and Images." In connection with the Queen's passing, another set of guidelines have been published on how to use the Queen's image to mark her demise, which temporarily relaxed the rules on the commercial use of approved images of the Queen through the day of her funeral on certain commemorative material and souvenirs, including on websites and social media. But even the usual rules do not prohibit the use of images of the royal family on items for sale altogether (except for a few enumerated items), but do require them to be permanent, free from advertisement, in good taste, not falsely imply any endorsement, and not be in contravention of any trademark or copyright. Whether the Queen-related NFTs are deemed to fall within these guidelines is an open question.

Not every celebrity comes equipped with a how-to guide like the Queen, however. Unauthorized use of a celebrity's image may run afoul of the right of publicity to the extent the use is deemed to be commercial or advertising in nature. See, e.g., Estate of Smith v. Cash Money Records, Inc., 14-cv-2703, 2018 WL 2224993 (S.D.N.Y. May 15, 2018) (inclusion of hip hop artist Drake's images on music publisher's web site infringed Drake's right of publicity; the court rejected music publisher's argument that the use was incidental since Drake appeared alongside many other artists); see also Katherine Heigl's lawsuit against Duane Reade for posting her image on Duane Reade's social media pages and elsewhere (the case settled out of court). "In this day and age, when many brands use social media to connect with their customers and any individual can be a social media ‘influencer,' even a single post on a brand's Instagram page may implicate an individual's right of publicity, whether the subject is a public figure or not." New York Practice Series, Commercial Litigation in New York State Courts, § 135:13. Thus, the use of celebrity images without permission on NFTs poses a risk for the creator. We have yet to see an onslaught of litigation against NFTs violating the right of publicity, but given the ease with which NFTs are created and the minimal oversight that is given over such creations, it may only be a matter of time. At least one case filed in a federal district court in CaliforniaMcCollum v. Opulous, et al., Case 2:22-cv-00587-MWF-MAR, involves a claim by a rapper named Lil Yachty accusing defendants of various claims, including one for the violation of his right of publicity by using his name and likeness in advertising and promotion of defendants' music copyright-backed NFTs.

There are, of course, defenses to a claim for the violation of the right of publicity. Depending on the type of use being made, the alleged infringer's rights may prevail over that of the celebrity's, as explained by the California Supreme Court in Comedy III Productions, In. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), where the court held "when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame." "The test . . . seems to be whether it is the art, or the celebrity, that is being sold or displayed.'" Hoepker v. Kruger, 200 F. Supp. 2d 340, 349 (S.D.N.Y. 2002). We have seen a similar defense raised in the trademark infringement case of Hermes v. Mason Rothschild case, where Rothschild claimed that his work was protected as art under the First Amendment because his NFTs of furry handbags sufficiently transformed the original Birkin bags. Similarly, use of the image of a political figure in a discourse regarding the political process is granted the highest form of protection under the First Amendment, and works that are newsworthy or of public concern also enjoy protection at levels that purely commercial speech does not.

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