About Our Host
Casey Handy-Smith is a contract law attorney who helps influencers and creative entrepreneurs who struggle with navigating the legal side of their online businesses and brands. Over the past 6 years, Casey has helped creatives negotiate fair deals while protecting and leveraging their creative assets with ironclad contracts. Beyond her work with 1-on-1 with clients, Casey also provides DIY contract templates for entrepreneurs needing instant clarity and confidence to legally protect their businesses.
3 Key Takeaways
- Publicity Rights can be tricky, which is why it is important to consider all possibilities when drafting and negotiating the contract at the beginning of the working relationship. Thinking about all eventualities and putting provisions and terms into the contract at the start can help you avoid situations like this in the long run.
- Know your rights! I say this all the time, but you have to know the rights you hold when in various situations. In this case, it’s good to know that the law can be loose surrounding publicity rights, so that is why writing the terms into the contract is key.
- Know your role! Are you an employee subject to a work for hire or a contractor that needs to negotiate a usage clause?
- Remember that to make this claim, many states require that you have already commercially exploited your identity to make this claim. So, again, make sure you have a good contract and you keep the receipts!
[2:55] – Background of the Situation
- John Melendez, longtime Howard Stern Show personality “Stuttering John” is suing SiriusXM Radio for using his archived hot-button interviews with the likes of the Dalai Lama, Ringo Starr, and Mike Tyson without compensation and in violation of his publicity rights.
[6:00] – Understanding Publicity Rights
- The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness, and persona. The purpose of this law is to protect the individual from the loss of commercial value resulting from the unauthorized appropriation of their identity for commercial purposes.
- It’s important to know that there is no uniform federal law for the right of publicity despite increasing demands for such a law.
[9:34] – Specifics of this case
- According to the complaint, Sirius acquired a license to not only current episodes of the show but also to air full or partial episodes from the archives. Melendez argues that it’s disregarding his right of publicity by using his identity, likeness, name, image, and voice for its commercial advantage.
- Disputes like this are relatively common in the sports world, and typically haven’t ended in favor of the talent. The NFL in 2014 beat a suit from ex-players over the use of their likenesses in video footage, in part because the court found “brand enhancement alone is not sufficient to render a production advertising as a matter of law” and ruled the projects were protected by the First Amendment.
- These disputes may serve as a roadmap and it’s likely Melendez’s case could turn on whether or not a New York federal judge considers any of Sirius’ use to be advertising.
[16:00] – Key Takeaways:
- Publicity Rights can be tricky, which is why it is important to consider all possibilities when drafting and negotiating the contract at the beginning of the working relationship.
- Know your rights!
- Know your role! Are you an employee subject to a work for hire or a contractor that needs to negotiate a usage clause.
- Remember that to make this claim, many states require that you have already commercially exploited your identity to make this claim.