Under Texas Law, it is unlawful for anyone to use another person’s name, likeness, voice, or other marketable traits for commercial purposes unless that person (or their estate) has consented to the use. This is known as the “right of publicity,” and it is an important intellectual property right that most commonly applies to celebrities who have personal brands that generate revenues through works of art, advertisements, or social media platforms. But with the internet giving everyone the ability to cultivate and profit from their own personal brands, just about any person can have publicity rights. When someone misappropriates your identity for their own benefit, experienced Austin right of publicity lawyers may be able to help you file a legal claim and get financial compensation.

Contact the Tauler Smith LLP legal team to schedule a free initial consultation about your Austin right of publicity case.

Statutory and Common Law Right of Publicity Claims in Austin, TX

In Texas, there is both a statutory right of publicity and a common law right of publicity. Statutory publicity rights are more limited, with the law only protecting them posthumously. By contrast, common law publicity rights protect living people against the unauthorized use of their identity.

Texas Statutory Right of Publicity

The Texas statute that explicitly protects the right of publicity is called the Buddy Holly Bill, and it is found in Tex. Prop. Code Title 4, Chapter 26. The law begins by defining the right of publicity as a property right involving a deceased person’s name, voice, signature, photograph, or likeness. The property right specifically applies to these aspects of someone who is no longer alive. If another person or company uses the deceased person’s marketable traits in connection with an advertisement or directly in the sale of goods, they must have written consent from the living person who legally holds the IP right. (E.g., the person who inherited the celebrity’s estate after their death.)

One important limitation on publicity rights is that the deceased individual’s identity must have commercial value either at the time of their death or afterwards when the lawsuit is filed. Another limitation is that the right of publicity only lasts for 50 years after the person’s death, at which point it expires. It may be necessary for you to consult with a knowledgeable Austin litigator to determine whether you have standing to bring a legal claim and advise you of any steps you may still need to take. For example, publicity rights can be transferred via contract or through inheritance, and the property holder can then register the right of publicity with the Texas Secretary of State. The only way to file a right of publicity misappropriation claim within the first year after the individual’s death is to first register the claim.

Texas Common Law Right of Publicity

When bringing a right of publicity claim in Austin, plaintiffs have options. That’s because there is something known as a common law right of publicity, which is based on previous court rulings and precedent. While plaintiffs filing a statutory publicity rights claim can only do so when it’s a posthumous right of publicity after death, there is no such limitation for a common law publicity rights claim. In fact, a common law misappropriation claim can be filed while the person is still alive.

As is the case with the statute, the common law right of publicity is also meant to protect the value that is tied to a person’s name or likeness. When deciding whether the defendant has misappropriated the plaintiff’s identity, Texas courts will typically ask the following questions:

  1. Was the defendant’s use of the plaintiff’s identity for commercial purposes?
  2. Is it clear that the plaintiff’s identity was being used? (E.g., the plaintiff’s actual name was used in an ad or commercial as opposed to a pseudonym that conceals their identity.)
  3. Did the defendant benefit in some way from the use?

What Damages Are Available in Austin Publicity Rights Cases?

When someone uses your name or likeness in an advertisement, they must have your consent to do so. If they failed to obtain consent, or if they failed to get permission to use a deceased person’s identity when you control the likeness rights, you may be able to seek financial compensation by filing a lawsuit in state or federal court.

The damages that are potentially available to plaintiffs who win right of publicity claims in Texas include the following:

  • Statutory Damages: $2,500 for each violation.
  • Actual Damages: These are the calculable damages suffered by the plaintiff because of the defendant’s unauthorized use of their identity.
  • Exemplary Damages: If the defendant’s unauthorized use was blatant and intentional, the court may award additional punitive damages to the plaintiff.
  • Attorney’s Fees: Plaintiffs may be eligible for an award to cover their reasonable attorney’s fees and legal expenses related to the lawsuit.

For statutory right of publicity claims, the court will determine which amount is greater: the actual damages caused by the defendant’s use, or the statutory damages amount of $2,500. An additional option in both statutory claims and common law claims is an award of exemplary damages, which are punitive in nature and may be awarded by the court when the defendant intentionally disregarded the plaintiff’s rights and had no intention of paying for the use of their identity. (E.g., breaking a contract that had previously been entered into by the parties.) In common law right of publicity claims, you may be able to recover what are known as “special damages” for any mental suffering or distress caused by the defendant’s use of your identity.

Transferring a Right of Publicity in Texas

Texas law allows you to transfer your right of publicity, either while you are alive via contract or at the time of your death via inheritance. It is also legal for someone to transfer a publicity right that they inherited. Since there can be significant monetary value in a publicity right, you may choose to enter into an agreement that allows your image, voice, or likeness to be used for commercial purposes. You might also want to make sure that your image is not misused after your death.

If you inherited someone else’s right of publicity after their death, you may opt to register it with the Texas Secretary of State by filing Form 3701. Although registration is not technically required, it will become necessary if you want to exercise the publicity right within one year of the person’s death. Official registration typically functions as sufficient evidence in court if there is a dispute over ownership of the publicity right at issue.

Austin, Texas

Austin has one of the largest populations in Texas, with nearly one million residents. The Texas State Capitol is in downtown Austin. The chambers for the Texas Legislature are in the building, as is the office of the Governor of Texas. A couple of major freeways surround Austin: Interstate 35 (I-35) and the Mopac Expressway (Loop 1). Other major roads that run through the city include U.S. Highway 183 (Route 183), U.S. Highway 290 (Route 290), and State Highway 71. Additionally, a popular public transit option for people wanting to travel to and from Austin is the Capital Metro bus service and the Capital MetroRail, which is a commuter rail system with a single line that serves the Greater Austin area.

Free Consultation with the Austin Right of Publicity Attorneys at Tauler Smith LLP

The Tauler Smith LLP intellectual property team includes Austin right of publicity attorneys who regularly file IP claims in both federal and state courts. We also represent both plaintiffs and defendants in publicity rights cases throughout Texas. Call us or send an email to discuss your case.