Experienced Dallas right of publicity lawyers understand just how valuable certain intellectual property rights can be, especially a person’s right of publicity. Texas law makes it illegal for anyone to use your marketable traits (e.g., name, likeness, voice, etc.) without first obtaining your consent. This also applies to the marketable traits of a deceased individual, which often comes up when that person was a celebrity whose identity would be valuable to others for marketing purposes. It is important to recognize that publicity rights can also hold significant value for non-celebrities, particularly in the internet era when social media gives everyone a platform to create a personal brand. If you believe that another person or company has misappropriated your right of publicity, you need to speak with an intellectual property lawyer as soon as possible.
Tauler Smith LLP is a law firm that represents clients throughout Texas, including the Dallas-Fort Worth area. Contact us today to discuss your right of publicity case.
Filing a Statutory Right of Publicity Claim in Dallas, Texas
Texas has a statute that explicitly protects the right of publicity for deceased individuals. That law is known as the Buddy Holly Bill, and it is codified in Texas Property Code Title 4, Chapter 26. The statute prohibits anyone from using a deceased person’s name, voice, signature, photo, or likeness without consent that has been granted either in the form of a contract entered into while the person was alive or a licensing agreement with the person’s estate after death. When someone misappropriates that identity by using it in an advertisement or in connection with the sale of goods, the intellectual property holder may bring a right of publicity claim in state or federal court. Only posthumous publicity rights are protected by the Texas statute.
If you believe that your publicity rights have been violated, you need to speak with an intellectual property attorney as soon as possible. An experienced Dallas litigator can examine the details of your case and help you weigh your options. For instance, you will need to determine whether the name or likeness at issue currently holds commercial value; otherwise, your lawsuit could be barred. You will also want to make sure that your claim is within the allowable timeframe: the right of publicity is only protected by the Texas statute for 50 years following the person’s death. Additionally, if you decide to bring a right of publicity claim during the first year after the person’s death, you will first need to file the necessary paperwork with the Texas Secretary of State.
Common Law Right of Publicity Claims in Dallas
In addition to the statutory right of publicity, there is also a common law right of publicity in Texas. Common law publicity rights are based on legal precedent that has been established by prior court decisions. Although statutory law only protects the right of publicity posthumously, the common law right of publicity applies to living persons. If someone misappropriates your name, voice, or likeness for commercial purposes and they benefitted or gained an advantage from that use, you may be able to file a lawsuit for financial compensation. These cases can be incredibly complex and typically require a nuanced understanding of how courts apply the law, so it will be to your advantage to speak with a knowledgeable Dallas attorney who has experience handling right of publicity claims in state and federal courts.
Financial Compensation for Plaintiffs in Dallas Right of Publicity Cases
If you file a right of publicity claim in Dallas, the most important remedy available in the case is going to be money damages. The court may award you statutory damages in the amount of $2,500 per violation. Alternatively, the court can award actual damages to compensate you for any financial loss you suffered because of the misappropriation. Ultimately, the decision about whether you receive statutory damages or actual damages will be based on which amount is greater. (For common law claims, statutory damages are not an option – so only actual damages may be awarded.)
Additionally, for both statutory and common law right of publicity claims, you may be eligible for exemplary damages that are meant to punish the defendant for their actions. Exemplary or punitive damages may be awarded when the defendant’s misappropriation is determined to have been blatant and intentional. (E.g., the defendant breached a contract entered into with the plaintiff.) In common law claims, the court can also award “special damages” to compensate the plaintiff for mental suffering caused by the defendant’s misappropriation.
How Do You Transfer a Right of Publicity in Texas?
Under Texas law, you control when and how your identity is used by others for commercial purposes. This not only means that you can stop someone else from using your image or voice in an ad, but you can also enter into a licensing agreement to allow the use of your likeness. This is especially important if it’s a celebrity likeness that you control due to inheritance. Depending on the situation, those likeness rights could be extremely valuable. If you have ownership of the likeness rights, you can also choose to use them in your own company’s advertisement. One restriction is that you must file Form 3701 with the Texas Secretary of State when using the publicity right within one (1) year of the individual’s death. Another benefit of registering the publicity rights with the state is that you will have strong evidence of legal ownership if there is ever a right of publicity claim that needs to be litigated in court.
Dallas has a diverse population, with 42% of residents being Hispanic or Latino and another 23% African American. Dallas also has one of the largest LGBT populations in the United States. In fact, Dallas is known for being one of the most diverse cities in Texas. The local population is made up of many different ethnicities and religious backgrounds. Downtown Dallas hosts several festivals each year, including a Cinco de Mayo celebration, a Saint Patrick’s Day parade, a Halloween parade, and Juneteenth festivities.
The city’s residential real estate market is at an all-time high, with single-family homes and apartment buildings seeing a substantial rise in sales over the past decade. Leases and sales in the Dallas commercial and industrial space have also thrived as many companies relocated to the area.
Contact the Dallas Right of Publicity Attorneys at Tauler Smith LLP
Tauler Smith LLP is a law firm that represents clients in Dallas courtrooms. Our skilled Texas litigators assist both plaintiffs and defendants in a wide range of cases involving intellectual property disputes, including right of publicity claims. Call 972-920-6040 or email us to schedule a free initial consultation about your case.