Superhero Privacy Rights, Part One

In the real world comic book characters and their likenesses have been made into toys, video games, movies, television shows, lunchboxes, bed sheets, and innumerable other things. All of these secondary uses are mediated through intellectual property rights, particularly copyright and trademark rights. But if Superman were a real person, how might the situation be different? Could just anyone slap his image or iconic S shield on a lunchbox? What about uses that suggest that Superman endorses a product or service? (“Try Metropolis Brewery Beer, the choice of the Man of Steel!”) Or worse, what about revealing a superhero’s secret identity? I. The Rights of Publicity and Privacy Future posts will address copyright and trademark, but first we must address something that real people have that fictional characters do not: the rights of publicity and privacy. Unlike copyright and trademark, these rights are not intellectual property rights per se but rather rights derived from common law torts. In the United States the rights of publicity and privacy are primarily matters of state law. As you might imagine, much of the law is driven by the interplay between celebrities and the media, and the two states with the most well-developed case law are California and New York, although those are not the only states with right of publicity statutes. Nineteen states have general right of publicity or privacy statutes (CA, FL, IL, IN, KY, MA, NB, NV, NY, OH, OK, PA, RI, TN, TX, UT, VA, WA, WI). J. Thomas McCarthy, 1 Rights of Publicity & Privacy § 6:8 (2d ed.). Arizona has a specialized statute that applies to active and former members of the US armed forces, which may be useful for the many superheroes that are or were part of the military. Ariz. Rev. Stat. § 12-761. he states that lack privacy or publicity statutes at least recognize the common law torts related to the right of privacy. McCarthy § 6:2. Usually this takes the form of Prosser’s four privacy torts of intrusion, disclosure, false light, and appropriation. See William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960). This post will consider intrusion, and the others will be addressed in future posts. For this series we will primarily consider the common law of privacy. Only a minority of states have statutes, and they vary widely in their nature and scope. Even the six states that modeled their statute after New York’s refer to it only loosely. See, e.g., Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 747 (1980) (noting that “The statutory scheme of Massachusetts differs from that of New York.”). Since fully addressing the patchwork of privacy laws around the country could fill a book (and has), the common law approach lets us speak in general terms.