Whose Rights Are Protected?

The issue of who can be protected by these laws also varies country by country. Under Germany’s rules anyone can be protected—from public figures to legal entities. The right of publicity also cannot be transferred.

“Nevertheless, an individual may consent to the utilization and commercialization of their identity,” said Ms. Knitter. The right also extends post mortem.

In the U.S., Mr. Avsec noted, there is a lot of inconsistency as protection varies from state to state.

“But generally, you need to be careful about everybody’s rights to publicity or privacy,” he warned. “It’s very important to investigate and understand the protection afforded by each state, whether by statute or common law.”

Mr. Avsec went on to outline the various “quirks” of the country’s rules, especially the stringent laws around post mortem right of publicity.

“Don’t be fooled into thinking that because a celebrity has been dead for a long time, they don’t have right of publicity,” he said, highlighting cases involving actors Humphrey Bogart and Ms. Monroe.

Mr. Blum said there is “no limitation on who is protected” under the UK tort of passing off, from celebrity sportspeople to singers and even fictional characters.

“However, all claimants must have a ‘protectable goodwill.’ This is the threshold for any claim,” he explained.

“Celebrities have to be famous and by extension have something protected—their name or image, which is associated with some goods,” he said, citing a case involving the cartoon characters from the “Teenage Mutant Ninja Turtles” series as an example of how far the “strange” concept of protectable goodwill will stretch.

“It all depends on the circumstances,” explained Mr. Blum. “That’s the beauty about passing off—it’s a flexible right.”

In France, the civil and criminal courts afford protection that is quite comprehensive, said Mr. Béjot. It does not require the target to be famous or the purpose of the infringing use to be commercial.

When someone dies, their right of publicity ends, “but the heirs can bring a legal action based on proof of the prejudice they personally suffered in connection with the violation of the deceased’s right of publicity,” said Mr. Béjot, although he noted that image rights differ slightly.

Scope of Rights of Publicity

The panel turned to what kinds of use or disclosure could be protected. “In Germany, it’s everything,” said Ms. Knitter, noting the right of personality is protected in all types of media from movies, to video games and books.

The right of personality is also protected in “spheres” to varying degrees, including the public, social, private, and intimate.

“There is more protection in the private sphere. Any use in the intimate sphere—the inner emotional world of the person or sexual expression—is never allowed,” she explained.

Ms. Knitter concluded: “It is a bundle of rights that protects an individual’s personality from public exposure. The right of personality in Germany is quite broad.”

This is similar to the U.S., where generally the rights are fairly expansive, said Mr. Avsec.

He explained that, typically, video game characters or look-alike impersonators will not avoid liability. For example, college football players successfully alleged rights in video game avatars that mimicked their physical attributes such as their weight, build, hair color, and skin tone.

Mr. Avsec also shared the example in a lawsuit brought by singer Ariana Grande, who successfully sued clothing retailer Forever21 for using her lookalike in an advertising campaign.

In the UK, however, “each case is totally fact-specific,” said Mr. Blum.

He detailed the successful lawsuit brought by singer Rihanna against the clothing retailer TopShop over a T-shirt bearing her image.

“The judge said this was a finely-balanced case,” he said. “What tipped the case in favor of Rihanna was that she had her own clothing line, she was quite prominent in the fashion world, and fortunately for her, she had a prior connection with TopShop.”

According to Mr. Blum, the court found that the image was reproduced from an album she had released around that time and the public may have, incorrectly, drawn a line between the two. The judge said there was a misrepresentation, but the court was keen to stress that just because an image was used did not automatically mean a misrepresentation had occurred.

Defenses and Exceptions

In Germany, the general rule is that commercial use without an individual’s consent is permitted only in exceptional cases, explained Ms. Knitter. Exceptions are constitutional rights such as artistic expression or freedom of expression. She suggested that TopShop’s Rihanna T-shirt might not meet that criterion because in Germany it would only have “advertising value.”

Mr. Avsec noted that the U.S. First Amendment, which includes artistic expression, freedom of expression, and newsworthiness, provides exceptions. Newsworthiness, for example, was successfully accepted as an exception in a case involving a newspaper’s use of an image of football player John Madden.

In the UK, the freedom of expression defense is strong, as long as a misrepresentation has not occurred, explained Mr. Blum. It did not, for instance, protect the defendant who used images of cartoon character Betty Boop on a range of merchandise.

“In cases like this, where products are being sold to the public, freedom of expression is very unlikely to be successful,” he said.