Your Face Is Your Own Property

Is President Reagan’s image in the public domain? That’s what a Studio City reader wanted to know.

The reader had a sculptor friend who sculpted a bronze of the President and wanted to reproduce it commercially. Does he need the President’s permission?

In law school, lawyers are taught to answer questions by saying “yes and no” or “that depends.” In this case, the typical lawyer-type response of “yes and no” works. Yes, you probably need permission, and no, the President’s image is not in the public domain.

President Reagan, like any other person, has the right to control the commercial use of his likeness. In fact, a state law (Civil Code section 3344) says that you cannot “knowingly” use another person’s likeness “on or in products, merchandise or goods,” or to advertise, sell or solicit purchases of products, merchandise, goods or services.

An Early Case

This legal theory has been around a long time and varies state by state. One of the earliest cases was in 1902. A picture of Abigail M. Roberson, a New York woman, appeared without her permission on posters to advertise Franklin Mills flour. The New York courts said her rights had not been violated by the unauthorized use, but the next year the Legislature passed a statute--somewhat like the current California law--to protect her.

The California law applies to everybody, whether you are a movie star, a sports celebrity or a grocery clerk. So whether you are “Miami Vice” star Don Johnson or Joe Dokes, if someone takes your picture and then puts it on a poster or a T-shirt for sale without your permission, the law says you can sue and collect damages.

Obviously, a television star should be able to collect more in the way of money damages for the unauthorized commercial use of his likeness, but even a grocery clerk’s picture is worth something; the law says it is worth a minimum of $750.

Before you sue, however, you should know that there are lots of exceptions.

If your picture is used “in connection with any news, public affairs, or sports broadcast or account, or any political campaign,” your consent is not required. So before a newspaper prints a picture of you or President Reagan, it does not need to ask for permission.

Or if you are just one person in a crowd, perhaps in a photograph of the bleachers at a baseball game, the law may not apply.

You should read the statute carefully and consult a lawyer to determine if it applies to your particular situation.

The law protects more than a drawing or photo of your likeness. It also protects against the unauthorized commercial use of your “name, voice, and signature.” So watch out, Rich Little.

Until last year, in most cases this right to protect against the commercial use of your name and likeness died when you did. In other words, your heirs--at least in California--could not sue to stop the unauthorized use of your picture. That meant the heirs of Bela Lugosi could not collect damages in a California court for the unauthorized distribution of Dracula posters or other memorabilia with his image on them. However, other states did recognize that the right could be inherited.

Unauthorized Use

A new law (found in Civil Code Section 990) establishes a procedure to protect against the unauthorized commercial use of the name and likeness of celebrities who have died. Before heirs can sue to collect damages for such use, they must register with the secretary of state’s office to give notice that the deceased celebrity’s name or likeness cannot be used. But some lawyers have questioned the constitutionality of this new law.

And no doubt, some courts faced with the prospect of interpreting this law will have to answer questions like the rhetorical ones posed by Justice Stanley Mosk in a 1979 California Supreme Court case.

“May the descendants of George Washington sue the secretary of the Treasury for placing his likeness on the dollar bill? May the descendants of Abraham Lincoln obtain damages for the commercial exploitation of his name and likeness by . . . the Lincoln division of the Ford Motor Co.?”

In the meantime, I wouldn’t try to market plastic busts of Ronald Reagan without first checking with the White House.

Attorney Jeffrey S. Klein, The Times’ senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.